FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Bay County, Harry
Hentz McClellan, Judge - Case No. 031982CF000661XXAXMX
E. Miller and Melissa Montle of Innocence Project of Florida,
Inc., Tallahassee, Florida; and Rachel Day, Assistant Capital
Collateral Regional Counsel, and Scott Gavin, Staff Attorney,
Capital Collateral Regional Counsel, Southern Region, Fort
Lauderdale, Florida, for Appellant
Jo Bondi, Attorney General, and Charmaine M. Millsaps,
Assistant Attorney General, Tallahassee, Florida, for
Barrington Bates, a prisoner under sentence of death, appeals
the circuit court's order summarily denying his
successive motion for postconviction DNA testing pursuant to
Florida Rule of Criminal Procedure 3.853. We have
jurisdiction. See art. V, § 3(b)(1), Fla.
previously moved for postconviction DNA testing of several
items of evidence from the crime scene, which the circuit
court denied and this Court affirmed. Bates v.
State, 3 So.3d 1091, 1097-98 (Fla. 2009). In his current
motion, Bates seeks DNA testing of ten items, seven of which
were previously requested in his first rule 3.853 motion.
Specifically, Bates again seeks DNA testing of the following
items, rearguing that he did not commit the murder and that
the results of testing on these items would exonerate him:
(1) the victim's panties; (2) the victim's vaginal
swab; (3) semen smear slides; (4) the victim's skirt and
hosiery; (5) an acid phosphatase test; (6) the victim's
vaginal washing; and (7) the blue cord used to strangle the
victim. In denying Bates' prior motion, we rejected
Bates' argument that DNA testing on these items would
produce a reasonable probability of his exoneration in light
of the "accumulation of evidence" establishing his
identity as the perpetrator. Id. at 1099. Because
Bates seeks to relitigate questions of law already decided by
this Court, his claims as to these seven items are
procedurally barred. See Zeigler v. State, 116 So.3d
255, 258 (Fla. 2013) (holding defendant's successive rule
3.853 motion was procedurally barred because his prior motion
raising the same claims was denied by the trial court and
affirmed by this Court).
we affirm the circuit court's denial of DNA testing on
the three remaining items not subject to the procedural bar.
Regarding the first two items, Bates alleges that debris from
the victim's clothing, which includes a Caucasian hair
sample that Bates alleges could not be his because he is
African American, and the victim's fingernail clippings
could contain DNA of the actual killer and therefore
exonerate him. Bates further argues that if DNA testing on
these items excludes his DNA, he would also be exonerated.
Like the seven items for which DNA testing has already been
denied, favorable testing from these additional items would
not establish that Bates is not the perpetrator, as the
evidence of Bates' guilt is overwhelming:
Bates was arrested at the scene of the crime just
minutes after the victim's death. He had the
victim's diamond ring in his pocket, and he tried to
conceal it from law enforcement officers. A watch pin
consistent with Bates' watch was found inside the
victim's office, and Bates' watch was missing a watch
pin. Footprints consistent with Bates' shoes were found
behind the State Farm office building[, where the
victim's body was found]. Bates' hat was found near
the victim's body. Two green fibers were found on the
victim's clothing-one on her blouse and one on her
skirt-that were consistent with the material that Bates'
pants were made of. A knife case was found near the
victim's body, and that case was identified by various
witnesses as being the exact type that Bates wore. The
victim's two fatal stab wounds were consistent with the
type of buck knife that Bates carried in that case. The
consistency between the stab wounds and Bates' knife was
striking; the wounds were four inches deep, and Bates'
knife was four inches long; the width of the wounds was
consistent with the width of Bates' knife; and . . .
there were abrasions at the bottom of the wound that were
consistent with marks that Bates' knife would have made.
Bates' statements to investigators and at his trial also
placed him either at the scene of the crime or directly
involved in the victim's murder. Bates stated during a
telephone call to his wife after his arrest that he killed a
Bates, 3 So.3d at 1099.
light of this evidence, the absence of Bates' DNA or the
presence of an unknown male contributor's DNA on the
debris would not imply that Bates is not the perpetrator.
Similarly, DNA testing of the hair sample would not
conclusively identify the perpetrator, as there is no way of
knowing when, where, and how the hair (if it is not the
victim's) was deposited on the victim's clothing.
See Overton v. State, 976 So.2d 536, 568 (Fla.
2007). For the same reason, results from testing the
victim's fingernail clippings would not establish that
Bates is not the perpetrator. See Hodgkins v. State,
175 So.3d 741, 756 (Fla. 2015) (Canady, J., dissenting)
(explaining that DNA is often deposited under fingernails
through casual contact); see also State v.
Fitzpatrick, 118 So.3d 737, 770 (Fla. 2013) (noting the
lack of any scientific method to determine when DNA was
deposited). Finally, regarding the third item, because
Bates' other requests for testing were properly denied,
there is no reasonable probability that testing the
victim's blood sample, hair, and saliva standards for
comparison with the other requested items would exonerate
him. In light of the overwhelming evidence of Bates'
guilt, there is no reasonable probability that the results of
DNA testing on these three additional items would have
resulted in his acquittal or reduced his sentence.
we affirm the circuit court's order denying Bates'
successive motion for postconviction DNA testing.
LABARGA, CJ, and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,