Supreme Court of Florida
____________
No. SC17-707
____________
STATE OF FLORIDA,
Appellant/Cross-Appellee,
vs.
GERALD DELANE MURRAY,
Appellee/Cross-Appellant.
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No. SC18-334
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GERALD DELANE MURRAY,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC18-560
____________
GERALD DELANE MURRAY,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
December 20, 2018
PER CURIAM.
The State appeals, and Gerald Delane Murray cross-appeals, the partial grant
and partial denial of Murray’s initial postconviction motion filed under Florida
Rule of Criminal Procedure 3.851. Murray also appeals the denial of his
successive postconviction motion and petitions this Court for a writ of habeas
corpus.1 For the reasons explained below, we affirm the trial court’s orders and
deny habeas relief.
I. BACKGROUND
In 2009, this Court affirmed Murray’s conviction for first-degree murder and
sentence of death after four trials and three convictions for the murder of 59-year-
old Alice Vest in 1990. Murray v. State, 3 So. 3d 1108, 1112 (Fla. 2009). On
direct appeal, this Court described the facts as follows:
The evidence presented at the fourth trial revealed that on
September 15, 1990, the victim, Alice Vest, arrived home around
11:30 p.m. after having dinner with a friend. When her friend called
the next morning on September 16, however, Ms. Vest did not answer
the phone. Concerned, the friend called one of Ms. Vest’s neighbors
and asked him to check on her. The neighbor went to Ms. Vest’s
home and observed that one of her window screens was out of the
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
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window and that her screen door was propped open. Her phone lines
had been cut. After telling his wife to call 911, the neighbor and
another man looked inside the home and discovered Ms. Vest’s body
draped off of her bed with her head on the floor.
According to the medical examiner’s testimony, the cause of
death was strangulation with multiple stab wounds as a contributing
factor. Ms. Vest was also badly beaten with a metal bar, a candlestick
holder, and a broken bottle that left bruising around her neck, breasts,
and knees. She also had a black eye, a broken jaw, multiple
contusions, and at least twenty-four stab wounds over her face, neck,
upper and lower back, abdomen and thigh. Most of the stab wounds
were knife wounds, but some were consistent with infliction by a pair
of scissors found near her body. Ms. Vest had been strangled with a
web belt and two electrical cords. She was also both vaginally and
anally raped.
According to James Fisher, earlier on September 15, 1990,
Murray, Steve Taylor, and Fisher played pool together after which, at
around 11:50 p.m., Fisher dropped Murray and Taylor off at a corner
less than a mile from Murray’s home. Fisher then went home and
went to bed.
Juanita White, who lived approximately two miles from the
victim’s house, testified that, around 12:40 a.m., she saw Murray and
Taylor in her barn and watched the men run away after she sent her
dog to attack them. Murray’s brother further testified that both Taylor
and Murray left town the next day.
Evidence recovered from the scene of the crime included six
footprints, five from a Britannia shoe, which Taylor was known to
wear, and one that was unidentified. No fingerprints were recovered
from the scene that could be tied to either Taylor or Murray. Semen
was found inside the victim but the results were inconclusive. Semen
was also discovered on a blouse and on a comforter and was found to
be the same blood type as Taylor[2] but not Murray. None of the
blood spatters at the scene could be tied to either Taylor or Murray.
2. The death sentence and convictions of Taylor, Murray’s codefendant,
were affirmed on direct appeal in Taylor v. State, 630 So. 2d 1038, 1040 (Fla.
1993) (concluding that DNA evidence linked Taylor to the victim because “the
analyst testified that semen found in the victim’s blouse matched Taylor’s DNA
profile”).
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But pubic hairs recovered from the victim’s body and from a
nightgown were found to have the same microscopic characteristics as
Murray’s pubic hair, but not Taylor’s. Jewelry stolen from the
victim’s home was linked to both Taylor[3] and Murray.
Additional evidence presented at trial revealed that
approximately six months after his indictment for the murder of Alice
Vest, Murray escaped from prison. One of his co-escapees, Anthony
Smith, testified that, while out, Murray told him about his role in
Vest’s murder. According to Smith, Murray said that on the night of
the murder Taylor came over to his house and wanted to go out.
Murray initially refused, but Taylor was eventually able to change his
mind after the two drank some beer. Thereafter, Taylor convinced
Murray to break into a house. Together, the pair broke into what
Murray thought was an unoccupied residence. When Murray
discovered the owner was home, he wanted to leave, but Taylor
grabbed the female occupant, handed Murray a knife, and sexually
assaulted her. Afterwards, Murray had the victim perform oral sex on
him. Murray then wandered through the house looking for things to
steal. He returned to the bedroom five or ten minutes later and
discovered that Taylor had stabbed the victim about fifteen or sixteen
times but she was not dead. Murray and Taylor then secured some
sort of cord and, together, they choked the woman to death. After
they killed her, they took whatever was valuable and left.
Approximately seven months after his escape, Murray was captured in
Las Vegas, Nevada.
The jury in Murray’s fourth trial reached a verdict of guilty as
charged on all counts. During the penalty phase, the State introduced
evidence of Murray’s other violent felonies. But, pursuant to
Murray’s instructions, the defense did not introduce any mitigation
evidence. After the penalty phase closing arguments, the jury
recommended a death sentence by a vote of eleven to one.
Thereafter, the court held a Spencer hearing and Murray again
declined to present any mitigation evidence. The next day, the trial
court followed the jury’s recommendation and sentenced Murray to
death, finding that the aggravators outweighed the mitigating
3. Evidence presented at Taylor’s trial was that a bag was discovered buried
in Taylor’s backyard that “contained the pieces of jewelry taken from the victim’s
home during the attack and burglary.” Taylor, 630 So. 2d at 1040.
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circumstances. Specifically, the trial court found four aggravating
factors: (1) Murray was previously convicted of three felonies
involving violence (great weight); (2) he was engaged in a burglary
and/or sexual battery at the time of the commission of the murder
(immense weight); (3) the crime was committed for financial gain
(some weight); and (4) the crime was especially heinous, atrocious
and cruel (great weight). The trial court rejected two statutory
mitigating circumstances: (1) the crime was committed by another
person, and Murray’s participation was relatively minor; and (2)
Murray’s capacity to appreciate the criminality of his conduct was
substantially impaired. However, the trial court found the following
nonstatutory mitigating circumstances: (1) the untimely death of
Murray’s wife (very little weight); (2) Murray was incapable of
forming relationships with people (very slight weight); (3) he had
problems as a youth (little weight); (4) his lack of education and little
contact with his father (slight weight); and (5) his mental evaluation
after his arrest for aggravated assault (little weight).
Murray, 3 So. 3d at 1112-14 (footnotes omitted).
This Court affirmed Murray’s convictions and sentence on direct appeal. Id.
at 1126.4 When reviewing sufficiency of the evidence, this Court identified
evidence presented at trial consistent with Murray’s guilt as follows:
4. On direct appeal, Murray argued that:
(A) the trial court erred by admitting hair evidence recovered from the
victim’s body; (B) the trial court erred by admitting hair evidence
recovered from the victim’s nightgown; (C) the trial court erred by
admitting the testimony of a hair and fiber expert and limiting
Murray’s cross-examination of him; (D) the trial court erred by
denying Murray’s motion to dismiss his indictment; (E) the trial court
erred by denying Murray’s right to interview grand jury witnesses; (F)
the trial court erred in allowing the State to strike an African-
American juror without providing a legitimate race-neutral reason;
(G) the trial court erred by denying Murray’s motion for mistrial due
to juror misconduct; (H) the trial court erred in not giving the jury
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(1) the testimony of a jailhouse informant (Smith) detailing Murray’s
confession; (2) the evidence collected from the scene and the
testimony of the medical examiner which, together, confirmed the
details of the crime as Murray related them to Smith; (3) the testimony
of several witnesses who placed Murray with Taylor in the vicinity of
the crime near the time the crime was committed; (4) testimony
describing the presence of two different shoe prints as well as multiple
weapons, implying that more than one person committed this crime;
(5) the implication of consciousness of guilt since Murray left town
the next day and later escaped from incarceration; (6) evidence
connecting Murray and Taylor to Ms. Vest’s stolen jewelry; (7) the
incriminating statements Murray made to Detective O’Steen; and (8)
the presence of pubic hair recovered from Ms. Vest’s body and
nightgown which was found to have the same microscopic
characteristics as Murray’s known pubic hair.
Id. at 1125. Murray petitioned the United States Supreme Court for certiorari,
which was denied. Murray v. Florida, 558 U.S. 949 (2009).
Thereafter, Murray filed a motion for postconviction relief that was amended
four times. After holding two evidentiary hearings, the postconviction court
granted a new penalty phase pursuant to Hurst,5 but denied relief on all other
claims. Murray sought to amend his motion again, but was instead allowed to file
further instruction regarding the meaning of “abiding conviction of
guilt” when requested; (I) the trial court erred in allowing former trial
testimony to be read to the jury; (J) the trial court erred in not
dismissing his case because of double jeopardy; and (K) there was
insufficient evidence to convict Murray of the offenses charged.
Murray, 3 So. 3d at 1114.
5. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State, 202 So. 3d 40
(Fla. 2016).
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his additional claim in a successive motion for postconviction relief. The
postconviction court summarily denied relief on his successive claim.
II. ANALYSIS
The State appeals the grant of Hurst relief, and Murray cross-appeals the
denial of his other initial postconviction claims, and the summary denial of his
successive postconviction motion. Murray also petitions this Court for a writ of
habeas corpus.
A. INITIAL POSTCONVICTION MOTION
1. Hurst
The State argues that the trial court erred by granting Murray a new penalty
phase pursuant to Hurst. However, because Murray’s jury recommended the death
penalty by a vote of eleven to one, and because this Court has consistently and
repeatedly granted capital defendants new penalty phases post-Hurst where there
were nonunanimous jury recommendations in cases that became final after Ring, 6
we affirm the postconviction court’s grant of the new penalty phase. See State v.
Smith, 251 So. 3d 807, 810 n.3 (Fla. 2018) (citing 21 cases where this Court has
granted new penalty phases for cases involving nonunanimous jury
recommendations).
6. Ring v. Arizona, 536 U.S. 584 (2002).
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2. Anthony Smith
Murray argues that the postconviction court erred when it denied his newly
discovered evidence claim based on evidence that the State’s witness, Anthony
Smith, was coerced to testify against Murray and believed the State would reduce
Smith’s sentence in exchange for testifying. Murray bases this claim on statements
Smith alleged in Smith’s own 3.850 motion and a letter Smith wrote to the
prosecutor on January 26, 2006. Murray asserts that it is probable that a jury on
retrial hearing the impeachment evidence against Smith would discredit his
testimony and acquit Murray.
To obtain a new trial based on newly discovered evidence, a defendant must
meet two requirements. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). 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 it though due diligence. Id. “Second, the newly discovered evidence
must be of such nature that it would probably produce an acquittal on retrial.” Id.
Newly discovered evidence satisfies the second prong of the Jones 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)). In determining whether the evidence compels a new trial, the
postconviction court must “consider all newly discovered evidence which would
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be admissible” and must “evaluate the ‘weight of both the newly discovered
evidence and the evidence which was introduced at the trial.’ ” Id. at 521 (quoting
Jones, 591 So. 2d at 916). This determination includes
whether the evidence goes to the merits of the case or whether it
constitutes impeachment evidence. The trial court should also
determine whether the evidence is cumulative to other evidence in the
case. The trial court should further consider the materiality and
relevance of the evidence and any inconsistencies in the newly
discovered evidence.
Id. (citations omitted). “When a claim of newly discovered evidence is based upon
the recantation of testimony by a witness for the prosecution, the second prong of
Jones II [709 So. 2d at 512] is met only where the defendant first establishes that
the recanted testimony is truthful.” Spann v. State, 91 So. 3d 812, 822 (Fla. 2012).
This Court “review[s] the trial court’s findings on questions of fact, the
credibility of witnesses, and the weight of the evidence for competent, substantial
evidence.” Green v. State, 975 So. 2d 1090, 1100 (Fla. 2008). However, we
“review the trial court’s application of the law to the facts de novo.” Id.
Although Smith’s 3.850 motion and letters would constitute a recantation of
testimony if the allegations contained in them were taken as true, Murray’s claim
of newly discovered evidence is not based upon the recantation of testimony, but
on the impeachment value of Smith’s untruthful pleadings. When confronted at
Murray’s postconviction evidentiary hearing with his 3.850 motion and letter to the
prosecutor, Smith admitted that those were not true but instead a ploy to attempt to
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get a sentence reduction. Smith repeatedly testified at Murray’s second evidentiary
hearing that Smith was truthful in his testimony at Murray’s trial. The
postconviction court found that “Smith was credible when he made clear that his
3.850 claims were false and that the State did not offer him a reduced sentence if
he testified against” Murray in his testimony at Murray’s postconviction
evidentiary hearing. “[I]n determining whether the record supports the trial court’s
finding that the recantation was not credible, we give great deference to the trial
judge’s observations . . . .” Spann, 91 So. 3d at 825. The veracity of Smith’s
evidentiary hearing testimony is further corroborated by the fact that Smith
testified consistently through four trials about Murray’s admission to him after they
escaped jail together.
Additionally, Smith was impeached at Murray’s fourth trial in several
respects. First, Smith was impeached with evidence that the State agreed to waive
the death penalty in Smith’s first-degree murder case in exchange for his testimony
in Murray’s case. Second, Smith was impeached with his eight prior felonies.
Third, he was impeached with the inconsistencies in his deposition as to facts of
his escape with Murray, and between the facts of Murray’s role in the murder and
his written statement and testimony. Fourth, Smith was impeached as to the bank
robberies he completed after his escape from jail. Fifth, he was impeached with
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the specific facts of his murder conviction. Finally, Smith was impeached with the
fact that he had seen the television depiction of Murray’s case.
Accordingly, it is not probable that the additional impeachment evidence
would produce an acquittal on retrial. Therefore, we affirm the postconviction
court’s denial of this claim.
3. Expert Microscopist
Murray argues that his counsel was ineffective for failing to present an
expert microscopist in rebuttal to the State’s hair expert. The postconviction court
found that counsel was not deficient because he consulted with a hair and fiber
expert and made a strategic decision not to call him as a defense expert. We affirm
the denial of relief.
Following the United States Supreme Court’s decision in Strickland,7 this
Court has explained that, to prevail on an ineffective assistance of counsel claim, a
defendant must satisfy two requirements:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
7. Strickland v. Washington, 466 U.S. 668 (1984).
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Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490
So. 2d 927, 932 (Fla. 1986)).
Regarding Strickland’s deficiency prong, there is a strong presumption that
trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689.
Moreover, “[a] fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. The defendant bears the burden to
“overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). Regarding the prejudice prong, “Strickland requires
defendants to show ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ [A]
‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the
outcome.’ ” Henry v. State, 948 So. 2d 609, 621 (Fla. 2006) (citations omitted)
(quoting Strickland, 466 U.S. at 694).
Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the circuit court’s
factual findings that are supported by competent, substantial evidence, but
reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883
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So. 2d 766, 771-72 (Fla. 2004). Moreover, “when a defendant fails to make a
showing as to one prong, it is not necessary to delve into whether he has made a
showing as to the other prong.” Zakrzewski v. State, 866 So. 2d 688, 692 (Fla.
2003) (quoting Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001)).
Here, Murray did not demonstrate deficiency. At both postconviction
evidentiary hearings, Murray’s counsel testified that he did not call a hair and fiber
expert to testify because the hair at issue had been consumed by DNA testing.
Thus, counsel made the strategic decision to use information gained from
discussion with the expert to call into question the testing methods utilized by
Joseph DiZinno, the State’s expert.
Additionally, Murray did not prove prejudice. Trial counsel effectively
utilized the information he gained from talking to an independent expert to
challenge DiZinno’s testing and to elicit through cross-examination that there was
no proficiency testing, no written protocols, and no database of hair characteristic
when the hair analysis was conducted. Therefore, Murray has not shown a
reasonable probability that the sentence imposed would have been different had
defense counsel presented its own expert witness. In other words, our confidence
is not undermined.
Accordingly, we affirm the postconviction court’s denial of relief.
4. Newly Discovered Evidence Regarding DiZinno’s Testimony
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Next, Murray argues that the postconviction court erred in denying his
newly discovered evidence claim regarding Joseph DiZinno’s trial testimony.
Specifically, Murray claims that newly discovered evidence — a 2013 review by
the Department of Justice (DOJ) of DiZinno’s lab work and testimony in Murray’s
trial — establishes that DiZinno’s trial testimony regarding the hair evidence is
false and misleading. However, we affirm the denial of this claim.
A defendant must satisfy a two-prong test in order to obtain relief on the
basis of newly discovered evidence:
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.
Marek v. State, 14 So. 3d 985, 990 (Fla. 2009). “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.’ ” Henry v. State, 125
So. 3d 745, 750 (Fla. 2013) (quoting Heath v. State, 3 So. 3d 1017, 1023-24 (Fla.
2009)).
Murray has met the first prong of the newly discovered evidence test
because the 2013 DOJ review could not have been previously discovered by
Murray or trial counsel by due diligence because it did not exist at the time of trial.
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However, in Duckett v. State, 231 So. 3d 393, 396-401 (Fla. 2017), this
Court rejected claims of newly discovered evidence, Brady,8 and Giglio9 violations
related to a 2014 Department of Justice review of FBI hair and fiber analyst
Michael Malone. Duckett involved a nearly identical report with similar
conclusions about the report and testimony of hair and fiber expert Malone. In
Duckett, this Court determined that Duckett failed to establish that the 2014 DOJ
review of the hair and fiber analyst’s work and testimony in the defendant’s trial
was of such a nature that it would probably produce an acquittal on retrial, as
required to be granted a new trial based on newly discovered evidence. Id. at 400.
This Court reasoned that although the review indicated that the analyst’s lab
reports and testimony contained some erroneous statements that exceeded the
limits of science, the testimony also accurately represented the reliability of hair
analysis, that the testimony was challenged extensively, that the field of forensic
hair science was not discredited, and that the hair evidence was not the only
evidence to tie Duckett to the murder. Id. at 399-400.
Similar to Duckett, Murray has failed to meet the second prong of the newly
discovered evidence test because Murray has failed to demonstrate that the alleged
8. Brady v. Maryland, 373 U.S. 83 (1963).
9. Giglio v. United States, 405 U.S. 150 (1972).
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newly discovered evidence, the 2013 DOJ review, would probably produce an
acquittal on retrial. First, Murray has not established that DiZinno’s trial
testimony, when considered in its full context, was false. Although the 2013 DOJ
review concluded that DiZinno’s lab reports or trial testimony contained some
erroneous and invalid statements that exceeded the limits of science, the full
context of DiZinno’s trial testimony indicates that DiZinno used limiting language
intended to limit his conclusions. This is supported by the testimony of Richard
McNally, the section chief of the science and technology branch in the General
Counsel’s office at the FBI, who testified at Murray’s postconviction evidentiary
hearing that the review did not take into account the limiting language of DiZinno
in context, but looked only at the individual statements. Second, DiZinno’s
testimony was challenged at trial. Murray’s counsel extensively challenged
DiZinno’s credibility during cross-examination and even objected prior to his
testimony as to the lack of procedures and protocols. Third, even according to
Jason Beckert, who testified for Murray on the subject of microscopy at the
postconviction evidentiary hearing, the field of forensic hair analysis has not been
discredited and the FBI has not discontinued the use of such analysis. Beckert
further testified at the postconviction hearing that the errors attributed to DiZinno
were not errors at all. As explained in the letter from the FBI itself, the science
underling microscopic hair comparison was not the subject of the 2013 DOJ
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review. Given this context, the newly discovered evidence does not give rise to a
reasonable doubt as to Murray’s culpability.
Accordingly, we affirm the postconviction court’s denial of this claim.
5. Identification of Pieces of the Victim’s Jewelry
Murray also argues that his trial counsel was ineffective in failing to object
to hearsay testimony related to an officer’s testimony identifying the jewelry as the
victim’s. We conclude that the postconviction court did not err in denying this
claim.
First, Murray failed to demonstrate deficiency. Trial counsel testified at the
postconviction evidentiary hearing that he did not object to Detective O’Steen’s
comment about the jewelry because he recalled that O’Steen had visibly seen a
photograph of the victim wearing that particular jewelry item prior to discovering
the jewelry and had made that conclusion on his own. Additionally, trial counsel
testified that the issue of the jewelry being the victim’s was well-settled and
strategically not an issue worth fighting. This was a strategic decision. See
Patrick v. State, 246 So. 3d 253, 262 (Fla. 2018) (“A decision that lodging a
particular challenge to the validity of evidence would be a waste of resources in
light of counsel’s knowledge of corroborating facts can be a reasonable strategic
decision.”).
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Second, Murray failed to demonstrate prejudice. At the postconviction
evidentiary hearing, trial counsel testified that Murray’s theory of the case was that
Taylor was the sole perpetrator of the crime, a trial strategy established by the
record. Counsel further testified that the jewelry discovered in Taylor’s backyard
supports this theory and that it was strategically not worth trying to fight about it
because it was a well-settled issue that the jewelry was identified as being the
victim’s. Thus, Murray has not demonstrated a reasonable probability of a
different outcome had counsel objected. In other words, our confidence is not
undermined.
Accordingly, we affirm the denial of relief.
6. Shoeprint Expert
Additionally, Murray claims that trial counsel was ineffective for failing to
retain an expert on shoeprint analysis to rebut the testimony of the State’s expert,
John Wilson. Murray alleges that a defense expert could testify that the shoeprints
found in the victim’s home were from one individual. We affirm the denial of this
claim.
This Court has explained that it is not necessary for defense counsel to retain
a defense expert “where defense counsel cross-examined the State’s experts to
establish the facts necessary for the defense.” Belcher v. State, 961 So. 2d 239,
250 (Fla. 2007). Even if “arguably trial counsel’s strategy may have ultimately
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been unsuccessful, [the defendant] cannot now properly challenge an informed,
strategic decision of counsel in the hindsight of postconviction.” Dufour v. State,
905 So. 2d 42, 62 (Fla. 2005). “The defendant bears the burden to ‘overcome the
presumption that, under the circumstances, the challenged action “might be
considered sound trial strategy.” ’ ” McCoy v. State, 113 So. 3d 701, 707 (Fla.
2013) (quoting Strickland, 466 U.S. at 689).
In this case, Murray failed to demonstrate deficiency. Trial counsel testified
at the postconviction evidentiary hearing that he spoke with Wilson prior to trial,
and Wilson told counsel there was only one set of footprints. Thus, counsel’s
strategic decision to not call a shoeprint expert was reasonable given the
information he had been provided by the State’s expert that there was only one set
of footprints. Ultimately at trial, Wilson’s testimony implied that one print may
have come from a different shoe. Because this testimony was different from
Wilson’s prior reports, counsel thoroughly cross-examined Wilson about the
discrepancy dealing with the shoe impressions, specifically asking Wilson to read
from his report anywhere it mentions the possibility of any shoes other than
Britannia shoes. Further, trial counsel moved to strike Wilson’s testimony, and
that was denied. Counsel further addressed the discrepancy in Wilson’s testimony
in closing argument. Because trial counsel’s cross-examination brought out all the
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material points Murray claims an expert could have presented, Murray did not
demonstrate deficiency.
Second, Murray failed to demonstrate prejudice. Wilson explained at trial
that he could not say for sure that the unidentified print came from a different shoe.
Further, Wilson testified that there was no way he could testify as to how many
people were inside the victim’s house at the time of the victim’s murder. Murray’s
argument to this Court that “no expert has ever testified that there was more than
one type of shoeprint found at the scene” supports the conclusion that there was no
prejudice, particularly given trial counsel’s effective cross-examination. Thus,
Murray has failed to establish a reasonable probability of a different result if trial
counsel had retained a shoeprint expert. In other words, our confidence in the
outcome is not undermined.
Accordingly, we affirm the denial of this claim.
7. Other Claims
Murray further contends that the postconviction court erred in denying
several of his initial postconviction claims without an evidentiary hearing.
Specifically, Murray claims that the postconviction court erred in summarily
denying the following eight10 unrelated issues: (1) trial counsel was ineffective in
10. In addition to these eight issues, Murray mentioned in a footnote in his
brief that he wishes to appeal all claims in his initial postconviction motion that did
not receive an evidentiary hearing; however, Murray failed to present argument to
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failing to request a Richardson 11 hearing and to move for a mistrial regarding John
Wilson’s trial testimony that reconciled the discrepancy in the chain of custody of
the hair from the victim’s nightgown, for failing to discover that Wilson put the
lotion bottle in the plastic bag, and for inadequately preparing for trial with respect
to the tampering claim; 12 (2) trial counsel was ineffective in failing to impeach
Anthony Smith, who testified as to Murray’s role in the victim’s murder; (3) the
State’s failure to disclose the DOJ’s investigation into DiZinno violated Brady; (4)
the State’s failure to disclose that DiZinno’s initials on the hair evidence were
written by someone else violated Brady, and trial counsel was ineffective in failing
to object to this Brady violation or request a Richardson hearing; (5) the
presentation of DiZinno’s testimony violated Giglio; (6) trial counsel was
ineffective for failing to request a Richardson hearing because DiZinno did not
this Court and, therefore, waived the unbriefed claims. See Braddy v. State, 219
So. 3d 803, 825 (Fla. 2017).
11. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
12. To the extent Murray is attempting to relitigate the admission of the hair
evidence that either was or could have been raised on direct appeal, it is
procedurally barred. See Reaves v. State, 826 So. 2d 932, 936 n.3 (Fla. 2002).
Additionally, we agree with the postconviction court that the addition to Wilson’s
testimony did not materially alter or change a previous statement, did not rise to
the level of a discovery violation, and would not have supported a Richardson
hearing. And trial counsel raised multiple challenges to the chain of custody in an
effort to prevent the State from admitting the hair evidence due to tampering and at
trial identified the suspicious nature of Wilson’s testimony and challenged his
credibility. Therefore, Murray could not prove deficiency under Strickland.
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personally receive, mount, or initial the items into evidence; (7) trial counsel was
ineffective for failing to challenge the State’s use of peremptory challenges to
exclude jurors; and (8) trial counsel was ineffective for failing to properly preserve
two instances of juror misconduct. However, because these claims were facially
insufficient, procedurally barred, or without merit, we affirm the trial court’s
summary denial. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, &
3.993, 772 So. 2d 488, 491 n.2 (Fla. 2000) (explaining that an evidentiary hearing
must be held on an initial 3.851 motion whenever the movant makes a facially
sufficient claim that requires a factual determination); Teffeteller v. Dugger, 734
So. 2d 1009, 1023 (Fla. 1999) (“Trial counsel cannot be deemed ineffective for
failing to raise meritless claims or claims that had no reasonable probability of
affecting the outcome of the proceeding.”).
Additionally, “because all issues which were not barred were meritless, we
can find no cumulative error.” Johnson v. Singletary, 695 So. 2d 263, 267 (Fla.
1996).
B. SUCCESSIVE POSTCONVICTION MOTION
In the appeal of the denial of his successive postconviction motion, Murray
contends that newly discovered evidence demonstrates that Murray is innocent,
entitling him to an evidentiary hearing and a new trial. This alleged newly
discovered evidence is from James Dixon, a person of interest during the original
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homicide investigation in this case, who claims that Walter Holton committed the
murder, not Murray or Taylor. The affidavit of James Dixon, taken on September
15, 2017, states the following:
I, James Dixon worked for Walter Holton in the early 90s doing odd
jobs. Holton sold large amounts of cocaine with a Cuban Friend from
Miami, who drove a Porsche. Both men were dangerous if you
crossed them and were known to put contract hits out on people who
crossed them. I was questioned by Police about a sailboat necklace
that was possibly connected to a homicide. I got the sailboat necklace
from Angela Smith, who was the girlfriend of Walter Holton at the
time. She told me that she got it from his Cuban friend, who told her
to “never get rid of it.” I did not tell the police where I got the
necklace from, because I was afraid of Walter Holton and his Cuban
friend. My DNA was collected by the police and I was cleared of any
involvement with the homicide case.
We have affirmed the summary denial of a newly discovered evidence claim
filed in Taylor’s case based on James Dixon’s affidavit. See Taylor v. State, No.
SC18-520 (Fla. Dec. 20, 2018). We do so as well here.
As this Court has explained:
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. See Fla. R. Crim. P. 3.851(f)(5)(B). 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.
Kormondy v. State, 154 So. 3d 341, 351 (Fla. 2015) (quoting Walton v. State, 3 So.
3d 1000, 1005 (Fla. 2009)). This “Court will uphold the summary denial of a
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newly-discovered-evidence claim if the motion is legally insufficient or its
allegations are conclusively refuted by the record.” Ventura v. State, 2 So. 3d 194,
198 (Fla. 2009).
Here, the factual allegations of the newly discovered evidence claim based
on James Dixon’s affidavit are directly and conclusively refuted by the following
portions of the record: (1) testimony from Joseph DiZinno, the expert at the FBI,
matching the pubic hair recovered from Ms. Vest’s body and nightgown with the
microscopic characteristics as Murray’s pubic hair; 13 (2) the testimony of Smith
detailing Murray’s confession; (3) evidence connecting Murray and Taylor to Ms.
Vest’s jewelry; and (4) incriminating statements Murray made to Detective
O’Steen. The bag of jewelry, including a sailboat piece that the detective
discussed at both Murray and Taylor’s trials, was found buried in a bag at Taylor’s
former place of residence. See Taylor, 630 So. 2d at 1039-40 (“In January, 1991,
while Taylor’s former roommate was removing a fence behind the duplex, he
discovered a small plastic bag buried in the ground near the fence. The bag
contained the pieces of jewelry taken from the victim’s home during the attack and
burglary.”). At Murray’s trial, Murray’s brother and a friend testified that in
13. During postconviction proceedings, STR testing on DNA extract of the
hair was conducted by FDLE and then by a defense expert. FDLE found Murray
to be a match for “Q20, Hair #5,” and the defense expert was unable to exclude
Murray.
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February 1991 they saw Taylor go into the backyard of the duplex he lived in
previously and return with dirty hands from digging. Additionally, Taylor’s semen
DNA that was found on the victim’s blouse contradicts Dixon’s theory that Taylor
was not involved in the murder. Taylor, 630 So. 2d at 1040.
Accordingly, we affirm the summary denial of Murray’s successive
postconviction motion.
C. HABEAS PETITION
1. Burglary Jury Instruction
In his petition for habeas relief, Murray alleges that appellate counsel was
ineffective for failing to allege fundamental error based on the unobjected to
“remaining in” language contained in the jury instruction for burglary. However,
we deny relief.
The standard of review for claims of ineffective assistance of appellate
counsel mirrors the Strickland standard for ineffective assistance of trial counsel.
Valle v. Moore, 837 So. 2d 905, 907 (Fla. 2002). In order to grant habeas relief on
ineffectiveness of appellate counsel, this Court must determine
first, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the
correctness of the result.
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Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986) (citing Johnson v.
Wainwright, 463 So. 2d 207, 209 (Fla. 1985)).
Additionally, appellate counsel cannot be deemed ineffective for failing to
raise meritless issues or issues that were not properly raised in the trial court and
are not fundamental error. Valle, 837 So. 2d at 908. “In fact, appellate counsel is
not necessarily ineffective for failing to raise a claim that might have had some
possibility of success; effective appellate counsel need not raise every conceivable
nonfrivolous issue.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983);
Provenzano v. Dugger, 561 So. 2d 541, 549 (Fla. 1990)). Jury instructions “are
subject to the contemporaneous objection rule, and, absent an objection at trial, can
be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So. 2d
643, 644 (Fla. 1991).
Murray did not meet his burden of proving that appellate counsel was
ineffective for not litigating this claim of instructional error on direct appeal
because Murray did not demonstrate that the unobjected to “remaining in”
language included in the burglary instruction was error that rises to the level of
fundamental error.
This case is factually distinguishable from Floyd v. State, 850 So. 2d 383
(Fla. 2002). In Floyd, this Court reversed a burglary conviction where the jury
instruction included the “remained in” language. Id. at 402. The evidence in
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Floyd supported that the victim and the defendant knew each other, had an
extended discussion on the victim’s porch and in the house prior to the shooting.
Id. This Court reasoned that the facts did not support a “surreptitious remaining”
because it could be argued that the defendant’s intent to commit a crime formed
after he entered the victim’s house. Id. at 402. Therefore, when the facts cannot
support a “surreptitious remaining” after a consensual entry, inclusion of the
“remaining in” language from the standard jury instruction constitutes fundamental
error. Id.
In the present case, the record supports that Murray broke into the victim’s
house in order to gain entry, and not after a consensual entry. Specifically, this
Court summarized that “one of her window screens was out of the window and that
her screen door was propped open. Her phone lines had been cut.” Murray, 3 So.
3d at 1113. There is no plausible analysis under which the jury could have
concluded that the defendant entered the victim’s house without criminal intent and
only formed criminal intent while “remaining in” the victim’s house. As applied to
the facts of Murray’s case, the inclusion of the “remaining in” language in the
burglary instruction was mere surplusage and not fundamental error. Thus,
because including the “remaining in” language in the jury instruction was not
fundamental error, appellate counsel cannot be deemed ineffective for not raising
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an unpreserved claim on appeal. See Rodriguez v. State, 919 So. 2d 1252, 1281
(Fla. 2005).
Accordingly, we deny this claim.
2. Juror Vaccaro
Murray next argues that appellate counsel was ineffective for failing to raise
on direct appeal a claim that the trial court abused its discretion in denying his
cause challenge of juror Vaccaro. However, we disagree.
“The test for determining juror competency is whether the juror can lay
aside any bias or prejudice and render his verdict solely upon the evidence
presented and the instructions on the law given to him by the court.” Lusk v. State,
446 So. 2d 1038, 1041 (Fla. 1984). “A trial court has great discretion when
deciding whether to grant or deny a challenge for cause based on juror
competency.” Conde v. State, 860 So. 2d 930, 939 (Fla. 2003). “This is because
trial courts have a unique vantage point in their observation of jurors’ voir dire
responses.” Id. As a result, “this Court gives deference to a trial court’s
determination of a prospective juror’s qualifications and will not overturn that
determination absent manifest error.” Id.
Here, the trial court did not abuse its discretion. Although Mr. Vaccaro
initially indicated that it may be true that he would be more likely to believe a
police officer due to his familial relationships, upon further questioning he
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affirmed that he could follow the judge’s instruction to evaluate witness testimony
individually and not give more weight to a witness’s testimony because the witness
is a police officer. The trial judge noted that in observing Mr. Vaccaro, he seemed
very sincere and honest in his assertion. Appellate counsel was not ineffective for
failing to raise this meritless issues. See Mosley v. State, 209 So. 3d 1248, 1271
(Fla. 2016).
Accordingly, we deny relief.
3. Representing Murray at Trial and on Direct Appeal
Murray next claims that appellate counsel was ineffective for serving as both
trial counsel and counsel on direct appeal, violating Murray’s rights to conflict-free
counsel, due process, and equal protection. However, no relief is warranted.
“An actual conflict of interest that adversely affects counsel’s performance
violates the Sixth Amendment of the United States Constitution.” McWatters v.
State, 36 So. 3d 613, 635 (Fla. 2010). “To prove a claim that an actual conflict of
interest existed between a defendant and his counsel, the defendant must show that
his counsel actively represented conflicting interests and that the conflict adversely
affected counsel’s performance.” Thompson v. State, 759 So. 2d 650, 661 (Fla.
2000) (quoting Quince v. State, 732 So. 2d 1059, 1063 (Fla. 1999)). “A possible,
speculative or merely hypothetical conflict is ‘insufficient to impugn a criminal
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conviction.’ ” Hunter v. State, 817 So. 2d 786, 792 (Fla. 2002) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980)).
However, because ineffective assistance of counsel claims for failing to
preserve issues at trial are properly raised in postconviction, there arises no
potential for conflict when counsel is the same for trial and direct appeal.
Additionally, “[a]ppellate counsel’s failure to raise an issue which was not
preserved for appellate review and which does not present a fundamental error
does not amount to a serious deficiency in performance.” Bertolotti v. Dugger,
514 So. 2d 1095, 1097 (Fla. 1987). As a result, Murray cannot demonstrate the
deficiency prong of Strickland regarding counsel’s decision to represent Murray
during trial and on direct appeal.
Accordingly, we deny this habeas claim.
4. John Wilson
Murray contends that appellate counsel was ineffective on direct appeal for
failing to argue fundamental error and ineffective assistance of counsel on the face
of the record regarding John Wilson’s testimony reconciling the chain of custody
of the hair on the victim’s nightgown in relation to the lotion bottle. However, this
habeas claim is procedurally barred.
To the extent Murray is utilizing this claim as an attempt to relitigate the
admission of the hair evidence that was raised and rejected on direct appeal, it is
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procedurally barred. See Murray, 3 So. 3d at 1115-16. Moreover, this claim is
very similar to the claim of ineffective assistance of counsel raised in Murray’s
initial postconviction motion that was summarily denied by the postconviction
court. Although claims of ineffective assistance of appellate counsel are
appropriately presented in a petition for writ of habeas corpus, Valle, 837 So. 2d at
907, claims of ineffective assistance of appellate counsel may not be used to
camouflage issues that should have been presented on direct appeal or in a
postconviction motion. Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).
Accordingly, we deny this habeas claim.
5. DiZinno’s Initials
Murray also claims that appellate counsel was ineffective for failing to more
directly challenge Dizinno’s testimony when he gave new testimony during the
fourth trial that a lab assistant named Angie Moore probably placed his initials on
the hair evidence slides at the lab based on a review of his notes. DiZinno had
previously testified that he thought another technician had placed his initials on the
slides, but he also testified previously that he was not certain about that. Because
appellate counsel raised claims related to DiZinno’s testimony and the chain of
custody regarding this evidence, we conclude that he was not ineffective for failing
to raise such claims.
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A habeas petition should not be used as a vehicle for relitigating claims that
were raised and rejected by this Court in prior proceedings. See Thompson v.
State, 759 So. 2d 650, 657 n.6 (Fla. 2000). This Court has explained that when
looking at claims of ineffective assistance of appellate counsel for failure to raise
additional arguments in support of a claim on direct appeal, “petitioner’s
contention that [the point] was inadequately argued merely expresses
dissatisfaction with the outcome of the argument in that it did not achieve a
favorable result for petitioner.” Rutherford, 774 So. 2d at 645 (quoting Routly v.
Wainwright, 502 So. 2d 901, 903 (Fla. 1987)).
On appeal, appellate counsel raised multiple claims of evidence tampering,
and the trial court’s failure to exclude some evidence. See Murray, 3 So. 3d at
1115-16. This included a claim that the trial court erred by admitting the hair
evidence despite indications of probable tampering. See id. Counsel specifically
pointed to DiZinno’s testimony and changing the name of the technician who
worked for him that placed his initials on the slides. Initial Brief For Appellant at
23-26, 27-31, 47-49, Murray, 3 So. 3d 1108. Therefore, because he in fact did so,
appellate counsel cannot be deemed ineffective for failing to challenge the chain of
custody through the change in DiZinno’s testimony regarding who placed his
initials on the slides.
6. Prosecutorial Misconduct
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Finally, Murray alleges that appellate counsel was ineffective for failing to
raise a claim of prosecutorial misconduct based on inconsistencies in testimony of
various witnesses on direct appeal. However, we deny relief.
Appellate counsel cannot be deemed ineffective for failing to raise a
meritless issue. See Valle, 837 So. 2d at 908. Murray has not cited one case
involving prosecutorial misconduct based upon inconsistent testimony of witnesses
on retrial. Cf. Ruiz v. State, 743 So. 2d 1, 8-9 (Fla. 1999) (“Prosecutors Cox and
Goudie attempted to tilt the playing field and obtain a conviction and death
sentence in a number of improper ways: by invoking the immense power, prestige,
and resources of the State (i.e., ‘What interest do we [prosecutors] as
representatives of the citizens of this county have in convicting somebody other
than the person—.’); by demeaning and ridiculing the defendant (i.e., ‘if that guy
were Pinocchio, his nose would be so big none of us would be able to fit in this
courtroom’); by characterizing the defendant as the archetypical liar and then
equating truth with justice and justice with a conviction (i.e., ‘[t]ruth equals justice’
and ‘justice is that you convict him’); by appealing to the jurors’ raw emotions
(i.e., recounting the anecdote concerning prosecutor Cox’s cancer-stricken father);
and by introducing improper evidence (i.e., the blown-up photo of the bloody head;
testimony concerning the unrelated robbery charge; and testimony concerning the
unrelated gun).”). Appellate counsel was not deficient for using the alleged
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inconsistencies in testimony as support for evidence tampering claims that were
successful in previous direct appeals rather than as support for a novel
prosecutorial misconduct claim. 14
Accordingly, we deny habeas relief.
III. CONCLUSION
For the reasons set forth above, we affirm the postconviction court’s order
granting Hurst relief but denying Murray’s other initial postconviction motion
claims. We also affirm the summary denial of Murray’s successive postconviction
motion and deny his habeas petition.
It is so ordered.
PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
PARIENTE, J., concurs with an opinion.
LAWSON, J., concurs specially with an opinion.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, C.J., concurs.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.
14. Murray also raised a Giglio claim in his initial postconviction motion,
which the postconviction court denied, based upon the inconsistent testimony
resolving the chain of custody discrepancies.
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PARIENTE, J., concurring.
I agree with the majority’s decision affirming the postconviction court’s
order granting Murray a new penalty phase pursuant to Hurst 15 and denying
Murray’s separate petition for a writ of habeas corpus. I write separately to, again,
emphasize the arbitrariness in the discrepancy between Murray, who is receiving
Hurst relief, and his accomplice, Taylor, who was denied Hurst relief. See Taylor
v. State, No. SC18-520, slip op. at 26-28 (Fla. Dec. 20, 2018) (Pariente, J.,
concurring in result).
Taylor and Murray were both convicted of first-degree murder and
sentenced to death for the same crime—the 1990 murder of Alice Vest. Id. at 28.
Taylor’s conviction and sentence of death became final in 1994. Id. at 26.
However, as I explained in my concurring in result opinion in Taylor, Murray’s
conviction and sentence did not become final until 2009 because he received three
retrials. Id. at 27. Therefore, “[e]ven though both defendants received
nonunanimous recommendations for death—Taylor received a 10-2 jury
recommendation for death and Murray received an 11-1 jury recommendation—
Murray will receive a new penalty phase . . . but Taylor will not.” Id. This
discrepancy between Taylor and Murray’s cases illustrates how “the Court’s line-
15. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.
Ct. 2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).
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drawing for the retroactivity of Hurst creates unconstitutional results for
defendants.” Id. at 28.
LAWSON, J., concurring specially.
I concur in that portion of the opinion affirming the postconviction court’s
order granting Hurst relief for the reasons explained in Okafor v. State, 225 So. 3d
768, 775-76 (Fla. 2017) (Lawson, J., concurring specially), and I fully concur as to
all other issues addressed in the majority opinion.
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority’s decision except its affirming the grant of a new
penalty phase pursuant to Hurst.
CANADY, C.J., concurs.
Appeals from the Circuit Court in and for Duval County,
Russell L. Healey, Judge - Case No. 161992CF003708AXXXMA
And an Original Proceeding – Habeas Corpus
Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney
General, Tallahassee, Florida,
for Appellant/Cross-Appellee/Respondent
Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC,
Jacksonville, Florida,
for Appellee/Cross-Appellant/Petitioner
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