Supreme Court of Florida
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No. SC13-719
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JAMES AREN DUCKETT,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 26, 2014]
PER CURIAM.
James Aren Duckett, a prisoner under sentence of death, appeals the circuit
court’s order summarily denying his successive motion for postconviction relief,
which was filed under Florida Rule of Criminal Procedure 3.851. Because the
order concerns postconviction relief from a sentence of death, this Court has
jurisdiction of this appeal under article V, section 3(b)(1), Florida Constitution.
I. BACKGROUND
Duckett was a police officer in the City of Mascotte when he murdered
eleven-year-old Teresa McAbee. Duckett v. State (Duckett I), 568 So. 2d 891, 892
(Fla. 1990). Although we more fully detailed the facts of the case in our prior
decision in Duckett I, id. at 892-94, we briefly review them here. On the morning
of May 13, 1987, the victim’s body was found in a lake less than one mile from the
convenience store from which she disappeared between 10 and 11 p.m. on the
evening before. Id. at 892-93. During that time period, Duckett, the only officer
on duty that night, was at the convenience store, and he inquired about the victim’s
name and age from the convenience store clerk. Id. at 892. Upon exiting the store,
he spoke to the victim and put her in the front passenger side of his patrol car. Id.
He then got into the driver’s seat. In a pre-arrest statement, Duckett stated that the
victim had not been on the hood of his patrol car and denied being at the lake on
the evening of the murder. Id. at 893. However, “[b]oth Duckett’s and Teresa’s
fingerprints were discovered on the hood of Duckett’s patrol car.” Id. In addition,
a crime scene technician from the sheriff’s department and an expert witness both
testified that the “very unusual” tire tracks at the lake matched the tracks of
Duckett’s patrol car. Id. The medical examiner testified that the victim had been
sexually assaulted while still alive, strangled, and then drowned. After a jury trial
at which Duckett testified in his own defense, he was convicted of sexual battery
and first-degree murder. Id. at 893-94.
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This was a circumstantial evidence case, and we summarized the evidence
presented that was inconsistent with any reasonable hypothesis of innocence as
follows:
(1) [T]he victim was last seen in Duckett’s patrol car; (2) the tire
tracks at the murder scene were consistent with those from Duckett’s
car; (3) no one saw Duckett, the only policeman on duty in Mascotte,
from the time he was last seen with the victim until the time he met
the victim’s mother at the police station; (4) numerous prints of the
victim were found on the hood of Duckett’s patrol car, although he
denied seeing her on the hood; (5) a pubic hair found in the victim’s
underpants was consistent with Duckett’s pubic hair and inconsistent
with the others in contact with the victim that evening; and, (6) during
a five-month period, Duckett, contrary to department policy, had
picked up three young women in his patrol car while on duty and
engaged in sexual activity with one and made sexual advances toward
the other two.
Id. at 894-95. By an eight-to-four vote, the jury recommended a sentence of death
for the murder, and the trial court so sentenced him after finding two aggravating
factors (the murder was heinous, atrocious, or cruel and was committed during the
course of a sexual battery), one statutory mitigator (Duckett lacked a significant
criminal history), and nonstatutory mitigation (Duckett had a strong and supportive
family and had attempted to improve his education). Id. at 894. The trial court
also sentenced Duckett to life in prison with a twenty-five-year mandatory
minimum for the sexual battery. Id.
Duckett appealed his convictions and sentences, and we affirmed. Id. at
896. Subsequently, we also affirmed the denial of his initial postconviction motion
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and denied his petition for a writ of habeas corpus. Duckett v. State (Duckett II),
918 So. 2d 224, 239-40 (Fla. 2005). In addition, the federal district court denied
Duckett’s federal habeas petition, in which he alleged a number of constitutional
violations. Duckett v. McDonough, 701 F. Supp. 2d 1245, 1256-1300 (M.D. Fla.
2010).
II. ANALYSIS
In this appeal, Duckett argues that (A) the circuit court erred in summarily
denying his claim that newly discovered evidence demonstrates that a Federal
Bureau of Investigation (FBI) analyst’s testimony at trial regarding hair evidence
was erroneous and this Court should remand his case to the postconviction court
for an evidentiary hearing on this claim; (B) the failure to apply the United States
Supreme Court’s decision in Porter v. McCollum, 558 U.S. 30 (2009),
retroactively to his claims violates his constitutional rights to due process and
equal protection; (C) newly discovered evidence that a trial witness recanted her
testimony requires that Duckett be granted a new trial; and (D) section 837.021,
Florida Statutes (1997), relating to perjury by contradictory statement, is invalid.
For the reasons explained below, we affirm the circuit court’s summary denial of
relief of Duckett’s successive postconviction motion.
A. Hair Analysis Expert
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Michael Malone, an FBI hair and fiber analyst, testified at Duckett’s trial
regarding the pubic hair found in the victim’s underpants. In this first issue,
Duckett contends that the postconviction court erred in summarily denying his
claim that a 2011 independent analysis of Malone’s 1987-88 lab work and trial
testimony in this case constitutes newly discovered evidence that Malone’s trial
testimony was false and misleading.
1. Related Facts
At the time of trial, Malone was a well-qualified and recognized FBI expert
in the area of hair and fiber analysis. Duckett I, 568 So. 2d at 893. On direct
appeal, we summarized Malone’s trial testimony in this case as follows:
A pubic hair was found in the victim’s underpants. While other
experts could not reach a conclusion by comparing that hair with
Duckett’s pubic hair, Michael Malone, an FBI special agent who had
been qualified as an expert in hairs and fibers in forty-two states,
examined the hair sample, concluding that there was a high degree of
probability that the pubic hair found in her underpants was Duckett’s
pubic hair. Malone also testified that the pubic hair did not match the
hairs of the sixteen-year-old boy, the uncle, or the others who were in
contact with the victim that evening.
Id. We rejected Duckett’s challenge to Malone’s qualifications as an expert,
noting that defense counsel declined to object to Malone’s testimony at trial. Id. at
895. Moreover, we pointed out that the expert’s credibility was “extensively
challenged . . . during the cross-examination of Malone and during the testimony
of a Florida Department of Law Enforcement expert on hair analysis.” Id.
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We subsequently rejected claims related to Malone’s testimony at trial that
were raised on appeal from the denial of Duckett’s initial postconviction motion.
Duckett II, 918 So. 2d at 234-35. Duckett argued here that (1) the prosecution
engaged in “expert shopping” in obtaining Malone’s testimony; and (2) Malone’s
expert testimony was not credible. Id. at 234. In addition, Duckett contended that
the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to
disclose (3) a second, unknown hair that was found on the victim and (4)
impeachment evidence against Malone. Id. at 234-35. We held that the first claim
was procedurally barred and affirmed the postconviction court’s denial of the
second claim, noting Malone’s established proficiency and credentials in the field
of hair analysis. Id. at 234. As for the third argument regarding the unknown hair,
we held that the claim was conclusory and insufficiently pleaded. Finally, the
fourth claim was based on a 1997 report issued by the Department of Justice that
was critical of the FBI laboratories and some of the forensic examinations of the
agency’s analysts, including Malone. The report “indicat[ed] that Malone testified
falsely in a[n] [unrelated] court proceeding in 1985.” Id. at 235. Duckett alleged
that the State failed to timely disclose this evidence that could have been used to
impeach Malone’s credibility at trial. In affirming denial of this Brady claim, we
noted that the “report did not exist” at the time of Duckett’s 1988 trial or his 1990
direct appeal. Id.
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After the 1997 Department of Justice report was issued, the FBI hired
independent experts to examine the prior work and testimony of various agent
analysts, including Malone. One independent analyst reviewed many cases—
particularly death penalty cases—in which Malone offered expert testimony.
Subsequently, in August 2011, the same independent analyst reviewed Malone’s
hair-analysis work and testimony in Duckett’s trial and issued a report (2011
Report).
In the 2011 Report, the independent analyst addressed the same areas that he
had examined in his prior reviews of Malone’s work in other cases. In sum, the
analyst concluded that no written protocols prescribing the scientifically acceptable
examination and testing procedures for hair analysis existed until a decade after
Malone’s work in this case was done. Accordingly, the independent analyst could
not determine whether Malone’s work conformed to the standards or analytic
techniques applicable at the time Malone worked on this case. Second, Malone’s
laboratory reports were not adequately documented in the laboratory bench notes,
as there was no abbreviation key, small portions of notes were illegible, and some
notes were undated. Finally, Malone’s testimony at trial was not consistent with
the laboratory reports, the bench notes, or Malone’s area of expertise.
In reaching the conclusion that Malone’s trial testimony was inconsistent
with his reports, notes, and area of expertise, the independent analyst explained
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that at trial, Malone sometimes overstated or exaggerated the accuracy of hair
analysis. For example, the independent analyst opined that some of Malone’s
testimony conveyed the idea that no person other than Duckett could be the source
for the pubic hair found in the victim’s underpants. Similarly, Malone testified that
there was a “high degree of probability” the pubic hair found in the victim’s
underpants was Duckett’s. Duckett I, 568 So. 2d at 893. The independent analyst
explained that hair analysis does not support this degree of analytical certainty.
That is, microscopic hair analysis can show consistency but not absolute identity.
Nevertheless, the independent analyst also found that in other instances,
Malone properly stated the correct standard in his trial testimony. For example,
Malone correctly testified that the pubic hair found in the victim’s underpants was
“consistent with Duckett’s pubic hair” but was not consistent with the pubic hairs
of others who had been in contact with the victim that evening. Id. at 895. Malone
also explained that hair analysis is not as precise as fingerprints for identifying
someone. Malone expressly stated that he could not say that a particular hair came
from a specific person to the exclusion of anyone else.
The postconviction court concluded that the findings of the 2011 Report did
not provide a basis for relief because Duckett’s successive motion constituted mere
relitigation of the same hair-analysis issues that were previously decided adversely
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to Duckett. As we explain below, we agree that Duckett is not entitled to any
relief.
2. Discussion
Duckett contends that the 2011 Report constitutes newly discovered
evidence that—at a minimum—requires remand for an evidentiary hearing. We
have defined the requirements for newly discovered evidence claims as follows:
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
due diligence. Second, the newly discovered evidence must be of
such nature that it would probably produce an acquittal on retrial. See
Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). Newly discovered
evidence satisfies the second prong of this test if it “weakens the case
against [the defendant] so as to give rise to a reasonable doubt as to
his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309,
315 (Fla. 1996)).
Walton v. State, 3 So. 3d 1000, 1008 (Fla. 2009). As noted by Duckett, the State
does not dispute that the 2011 Report and evidence of other FBI reports critiquing
Malone’s work and testimony meet the first prong. Because the review of
Malone’s work in the instant case was written during these successive
postconviction proceedings, the 2011 Report could not previously have been
discovered by due diligence because it did not exist.
The question before us is not whether the new evidence warrants a new trial
but whether this case should be remanded for an evidentiary hearing regarding the
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2011 Report. When, as in this case, the postconviction court summarily denies a
postconviction motion, we apply the following standard of review:
A successive rule 3.851 motion may be denied without an
evidentiary hearing if the records of the case conclusively show that
the movant is entitled to no relief. This Court reviews the circuit
court’s decision to summarily deny a successive rule 3.851 motion de
novo, accepting the movant’s factual allegations as true to the extent
they are not refuted by the record, and affirming the ruling if the
record conclusively shows that the movant is entitled to no relief.
Id. at 1005 (citation omitted). “The burden is on the defendant to establish a
legally sufficient claim.” Nixon v. State, 932 So. 2d 1009, 1018 (Fla. 2006).
As outlined above, the thrust of the 2011 Report by the independent analyst
was that Malone’s testimony at trial was not consistent with his lab work because
some of his testimony at trial exceeded Malone’s area of expertise. Specifically,
the science of hair analysis could not support a conclusion of absolute identity. As
a result, any suggestion that it was highly unlikely that the pubic hair found in the
victim’s underpants belonged to anyone other than Duckett—as Malone testified in
at least one instance—overstated or exaggerated the degree of accuracy of hair
analysis. On the other hand, the independent analyst recognized that at trial
Malone also accurately represented the reliability of hair analysis by testifying that
hair analysis is not on a par with fingerprints for purposes of identification. In fact,
Malone expressly and correctly stated that hair analysis cannot support a
conclusion that a hair came from a single person to the exclusion of anyone else
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and accurately testified that the pubic hair from the victim’s underpants was
consistent with having come from Duckett. Thus, although some of Malone’s
testimony overstated the significance of the hair comparison, Duckett did not
establish that Malone’s testimony—when considered in its full context—was false.
Moreover, as we noted in our decision affirming Duckett’s convictions and
sentences, Malone’s testimony was “extensively challenged” at trial, first on cross-
examination and then “during the testimony of a Florida Department of Law
Enforcement expert on hair analysis.” Duckett I, 568 So. 2d at 895.
Appellant seeks remand for an evidentiary hearing, likening his case to those
of the defendants in Smith v. State, 75 So. 3d 205 (Fla. 2011), and Wyatt v. State,
78 So. 3d 512 (Fla. 2011). However, these cases, in which the defendants’
convictions rested at least in part on comparative bullet lead analysis (CBLA),
provide Duckett no support. In 2004, a report from the National Research Council
discredited the reliability of CBLA evidence. See Wyatt, 78 So. 3d at 525-26. The
next year, the FBI abandoned the forensic science of CBLA entirely and contacted
states regarding this decision. Id. In Smith, we reversed the denial of relief on the
defendant’s successive postconviction motion and remanded the claim for further
proceedings based in part on the FBI’s letters regarding the CBLA expert
testimony offered at Smith’s 1990 retrial. 75 So. 3d at 205-206. In Wyatt, this
Court also relinquished jurisdiction for a hearing but ultimately denied relief on the
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defendant’s newly discovered evidence claim where, although the FBI admitted
that the expert’s CBLA trial testimony “exceed[ed] the limits of the science,” 78
So. 3d at 526, the overwhelming evidence of guilt presented and the relative
unimportance of the CBLA evidence would not probably result in an acquittal on
retrial. Id. at 527.
Unlike CBLA, the field of forensic hair analysis has not been discredited,
and the FBI has not discontinued the use of such analysis. Moreover, Malone’s
expert testimony in this case was not without basis. Although some of his
testimony overstated the degree of accuracy of his analysis, other statements were
well within the bounds of the field. Nothing has been presented that undermines
Malone’s testimony that the pubic hair from the victim’s underpants was consistent
with Duckett’s and inconsistent with the pubic hair of others who had been in
contact with the victim on the night she disappeared. In addition, as previously
noted, his testimony was challenged extensively at trial. See Duckett I, 568 So. 2d
at 895.
Moreover, as recounted more specifically in our prior opinions, the hair
evidence was by no means the only evidence supporting the conviction in this case.
Significantly, the victim was last seen at the convenience store in Duckett’s patrol
car, and the unusual tire tracks at the lake where the victim’s body was found
matched those of Duckett’s patrol car. Duckett II, 918 So. 2d at 228-29. In
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addition, although Duckett had stated that the victim never sat on the hood of his
car, “[b]oth Duckett’s and Teresa’s fingerprints were discovered on the hood of
Duckett’s patrol car.” Id. at 229. In fact, “Duckett’s prints were commingled with
the victim’s, whose prints indicated that she had been sitting backwards on the
hood and had scooted up the car.” Id.
Given this context, we conclude that the newly discovered evidence does not
give rise to a reasonable doubt as to Duckett’s culpability. Accordingly, we affirm
the postconviction court’s summary denial of this claim.
B. Retroactivity of Porter
Duckett next contends that the postconviction court erred in denying his
claim that the Supreme Court’s decision in Porter v. McCollum, 558 U.S. 30
(2009), is retroactive under this Court’s analysis in Witt v. State, 387 So. 2d 922
(Fla. 1980), and must be applied to his claims of ineffective assistance of trial
counsel. In Walton v. State, 77 So. 3d 639, 644 (Fla. 2011), we addressed this
same issue and concluded that “the decision in Porter does not constitute a
fundamental change in the law that mandates retroactive application under Witt.”
Accord Reed v. State, 116 So. 3d 260, 266 (Fla.), cert. denied, 134 S. Ct. 643
(2013). Accordingly, we affirm the circuit court’s denial of this claim.
C. Witness Recantation
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In his third claim, Duckett contends that the postconviction court erred by
summarily denying his claim that newly discovered evidence shows that trial
witness Gwendolyn Gurley later recanted her testimony. We disagree.
Gurley’s trial testimony is set out in more detail in our opinion in Duckett II,
918 So. 2d at 232. In sum, she testified that she went to the convenience store on
the night of the crime. She saw a police cruiser parked near the store’s dumpster
and the victim standing outside the store. Gurley heard Duckett call to the victim,
who walked to the police car, and then she heard a car door shut. When Gurley
looked up again, she “could not see the victim.” Id. As the police car drove away,
Gurley “saw two people inside the car, ‘[o]ne was the driver, was the big man, and
a small person.’ ” Id.
In his initial postconviction motion, Duckett alleged that Gurley lied at trial,
and at the evidentiary hearing on the claim, he presented evidence of Gurley’s
subsequent recantations of her trial testimony. Id. “In various interviews with
counsel and investigators after trial, Gurley recanted her [trial] testimony, saying
that she was not at the [convenience store] on the night of the murder. . . .” Id.
Gurley took the stand at the evidentiary hearing but declined to answer any
questions relating to the night of the murder. Instead, she invoked the Fifth
Amendment privilege against self-incrimination. Id. On review, we held that the
recantation evidence did not merit a new trial and confidence in the verdict was not
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undermined. Id. at 233 (quoting Armstrong v. State, 642 So. 2d 730, 735 (Fla.
1994) (“Only when it appears that, on a new trial, the witness’s testimony will
change to such an extent as to render probable a different verdict will a new trial be
granted.”)). We reach the same conclusion here.
In his successive postconviction motion, Duckett offered as newly
discovered evidence the 2010 affidavits of two of Gurley’s adult children, in which
each claimed to have had conversations with Gurley during which she revealed
that she lied at trial in order to obtain favorable treatment from law enforcement
regarding certain offenses. The circuit court summarily denied the claim, and we
affirm. Florida Rule of Criminal Procedure 3.851 specifies the pleading
requirements for a newly discovered evidence claim in a successive postconviction
motion. In this case, Duckett failed to plead the reason that these affidavits were
not previously available, an essential element of a newly discovered evidence
claim. Fla. R. Crim. P. 3.851(e)(2)(C)(iv). Moreover, as recounted above, this
Court in Duckett II considered substantially similar recantation evidence regarding
Gurley that the affidavits of Gurley’s children now offer, and we affirmed the
denial of relief. 918 So. 2d at 232. Accordingly, we affirm the postconviction
court’s summary denial of relief on this successive claim.
D. Validity of Perjury Statute
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In his final claim, Duckett contends that section 837.021, Florida Statutes
(1997), which proscribes perjury by contradictory statement, is invalid. As stated
above, Gurley, who testified at trial, invoked her Fifth Amendment privilege at the
evidentiary hearing on Duckett’s initial postconviction motion. See Duckett II,
918 So. 2d at 232. Duckett argues that the fear of a felony perjury conviction
caused Gurley to invoke the privilege, which in turn violated his right to due
process. Therefore, he argues that section 837.021 is invalid. The postconviction
court denied the claim, noting that the issue was untimely raised and improperly
pleaded because Duckett failed to explain why it was not raised previously. See
Fla. R. Crim. P. 3.851(e)(2)(C)(iv). We agree that the claim was not timely raised
and is procedurally barred and affirm the postconviction court’s denial of the
claim.
III. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s summary denial of
appellant’s successive motion for postconviction relief.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, 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 Lake County,
William Gray Law, Jr., Judge - Case No. 87-1347CF
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Mary Elizabeth Wells of the Law Office of M. E. Wells, Atlanta, Georgia; and
Michael C. Meyer, Capital Collateral Regional Counsel – South, Ft. Lauderdale,
Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Mitchell D. Bishop,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee
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James Aren Duckett v. State of Florida
Combined Opinion