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Gregory v. State

Supreme Court of Florida

August 31, 2017

WILLIAM A. GREGORY, Appellant,
v.
STATE OF FLORIDA, Appellee. WILLIAM A. GREGORY, Petitioner,
v.
JULIE L. JONES, etc., Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED

         An Appeal from the Circuit Court in and for Flagler County, Joseph David Walsh, Judge - Case No. 182007CF000866XXXXXX And an Original Proceeding - Habeas Corpus

          Jim Viggiano, Capital Collateral Regional Counsel, Middle Region, Julie A. Morley, and Mark S. Gruber, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant/Petitioner

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Tayo Popoola, Assistant Attorney General, Daytona Beach, Florida, for Appellee/Respondent

          PER CURIAM.

         William A. Gregory appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the postconviction court's order denying postconviction relief as to the guilt phase. However, we reverse the death sentences and remand for a new penalty phase based on Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017), and Mosley v. State, 209 So.3d 1248, 1268 (Fla. 2016), because the jury's nonunanimous recommendation of death by a vote of seven to five as to both murders, is not harmless beyond a reasonable doubt, for reasons more fully explained below. We also deny Gregory's habeas petition except to the extent he seeks relief pursuant to Hurst. Finally, we affirm the postconviction court's denial of Gregory's Successive Motion to Vacate Judgment and Sentence (Newly Discovered Evidence).

         FACTS AND PROCEDURAL BACKGROUND

         The facts of the underlying murders and criminal trial were described in this Court's opinion on direct appeal:

William A. Gregory, who was twenty-four years old when the murders were committed, was for a time involved in a romantic relationship with Skyler Dawn Meekins, who was seventeen at the time she was murdered. Skyler and Gregory had a child together, although their romantic relationship ended in June 2007. Skyler and Gregory both continued, however, to participate in raising their child.
Around the time their relationship ended, Gregory was in jail and would often call Skyler's house. On several occasions, he spoke with Skyler's brother, and the two would discuss Skyler's whereabouts and activities. During one call, Gregory said he was "stressing about Skyler" and asked for information regarding any other men who might be calling for Skyler. Gregory stated that he knew Skyler was "trying to . . . get with dudes" and indicated that he would have to "kind of try to get over Skyler or something."
During another call, Gregory asked Skyler's brother to check Skyler's e-mail account and online profile for other men with whom she might be communicating. Gregory told Skyler's brother that he had previously accessed Skyler's e-mail account and "erased . . . all the dudes she had on there." Gregory also directed Skyler's brother to delete a message Skyler had posted on her online profile about being newly single. According to an individual who was incarcerated with Gregory during the period in which these calls were made, Gregory was jealous of Skyler, did not like the people she was spending time with, and stated that if he ever caught Skyler "cheating" on him, "he was going to blow her . . . head off."
Skyler began dating a new boyfriend, Daniel Arthur Dyer, on July 4, 2007. Gregory was aware of Skyler's new relationship with Daniel, but Gregory would continue to call for Skyler and, after his release from jail, would visit Skyler's house several times per week. According to Skyler's brother, Gregory would call and stop by to see Skyler "[a]t least three times a week . . . [u]sually not invited." Gregory and Skyler did, however, agree to go shopping together for their child's birthday party, and, while he was still in jail, Gregory would discuss the child on the phone calls he placed.
On August 20, the day before the murders, Gregory, who was out of jail and on probation, spent the day with his brother and a few friends. While at one friend's house, he test-fired a pistol that someone was trying to sell, possibly leaving gunshot residue on his hands, and while riding around with his brother and another friend, he used marijuana and crack cocaine and took pills. Sometime that afternoon, Gregory called Daniel's cell phone, asking to speak to Skyler, who spent the day with Daniel and Daniel's friend at Daniel's house.
Starting at 10:19 p.m. that night, Gregory began making a number of outgoing phone calls, including several to Skyler's house. At 10:26 p.m., an incoming call was made from Skyler's house to Gregory's house number, and there were then six additional outgoing calls from Gregory to Skyler's house after the incoming call to Gregory went unanswered. At 11:31 and 11:32 p.m., Gregory called the number for a taxicab company that was no longer in business.
Gregory's brother recalled seeing Gregory in their shared bedroom at approximately 3:00 or 3:30 a.m. in the early morning hours of August 21. Gregory was wet and mumbling about being down by the beach. Gregory later told his brother that he passed out at the beach and awoke with a wave washing up on him, that his shoes and wallet "got all soaked, " and that he then dove in the pool at a nearby condominium complex because he was "all . . . sandy."
At 4:17 a.m., Gregory called 911 to report himself for a probation violation as a result of his earlier drug use. A law enforcement officer informed Gregory that Gregory would have to take the matter up with his probation officer. Gregory's brother and a friend said that they had used drugs with Gregory in the past and had never known him to self-report a probation violation.
Around 6 a.m. that morning, Skyler's grandparents, who had been sleeping in the home during the murders, awoke to find Skyler and her boyfriend Daniel dead in Skyler's bed. Skyler and Daniel had each suffered heavy head trauma caused by the firing of a shotgun at close range while they slept. Skyler's father, who lived next door, called the authorities, and sheriff's deputies were dispatched to the home. On arrival, the deputies observed Skyler's and Daniel's bodies in a back bedroom, along with a shotgun and two shotgun shells lying on the floor in front of the bed. Skyler's grandfather kept a shotgun and rifles, along with ammunition, in a house closet, which was usually left unlocked.
Gregory had previously lived with Skyler in that house, and the guns were kept in the same location during that time. A firearms analyst concluded that an individual would have to have been familiar with the particular shotgun used as the murder weapon in this case in order to load it because it was not a popular shotgun and was "quite different" in how it would be loaded. Gregory's fingerprints were found on this shotgun.
After police had arrived at the home, Skyler's brother called and left a message for Gregory at 7:26 a.m., stating, "You better run." Gregory placed a 911 call at 8:24 a.m. to report this message to law enforcement and was taken by law enforcement to the Flagler County Sheriff's Office as a result of calling in the threat. Gregory was then arrested for a violation of probation based on his earlier admissions of using a controlled substance.
While at the sheriff's office, Gregory was tested for gunshot residue. The results were negative, although Gregory apparently thought that he had tested positive based on test-firing a pistol the prior day. Gregory subsequently placed a call to a friend from jail, telling her not to incriminate herself because the calls were recorded, and then explaining that law enforcement had taken magnet samples on his skin and reminding her that he "was popping off that pistol in the backyard" the previous day.
In subsequent phone calls, Gregory spoke to his mother and brother about the answers they were giving to law enforcement regarding his whereabouts at the time of the murders. In particular, Gregory questioned his mother about why she told investigators that she did not see him on the morning of August 21, and told her, "nobody's helping me out."
On August 25, Gregory was moved to a different housing facility. During this time, he was in the same cell block as an inmate who had been certified as a paralegal, and Gregory discussed his situation with this inmate. Gregory believed he had tested positive for gunshot residue and seemed very surprised about this because he said that was one of the reasons he had jumped in a pool after the incident. Gregory told the inmate that he used a shotgun instead of a pistol, thinking there would be less gunshot residue, and figured he must have tested positive because of firing the pistol the day before the murders.
According to this inmate, Gregory knew Daniel and Skyler were together in Skyler's house on August 21 because Gregory "said he was outside the house, like watching the house." Gregory told the inmate that he "just couldn't stand to see" Skyler with her new boyfriend and that the "worst part about it all was watching [Skyler] die." Gregory also stated to the inmate that he was "frustrated because he couldn't talk to his family on the phone because he knew that it was being recorded" and stated that his family members "were going to be his alibi."
Gregory later spoke to a different inmate about his case. Gregory told this individual that it was "a joke" that the State was concerned about Gregory having walked to Skyler's house on the night of the murders because it was "impossible for that to have happened." Gregory stated that he had a ride that night and that he "did what he had to do."
Gregory was subsequently indicted and tried for the murders of Skyler and Daniel. The jury found Gregory guilty of two counts of first-degree murder, one count of burglary, and one count of possession of a firearm by a convicted felon.

         The Penalty Phase

During the penalty phase of Gregory's trial, the State presented testimony from Gregory's probation officer that Gregory was on felony probation at the time of the murders. Gregory called his sister and mother to testify. Gregory's sister testified about Gregory's history of drug use, lack of a relationship with his father, and his witnessing an incident during which she was raped when he was eight years old. Gregory's mother testified about two head injuries Gregory suffered as a child and about the effect her abusive relationships with men and the rape incident involving Gregory's sister had on Gregory.
By a vote of seven to five, the jury recommended that Gregory be sentenced to death for the murders of Skyler Dawn Meekins and Daniel Arthur Dyer. A Spencer[1] hearing was held thereafter, where the State presented victim impact testimony and Gregory's sister briefly testified on his behalf.
In sentencing Gregory to death for both murders, the trial court found the following aggravating circumstances as to both victims: (1) the murders were committed by a person previously convicted of a felony who was on felony probation (moderate weight); (2) Gregory was previously convicted of a prior violent felony (very substantial weight); (3) the murders were committed during the course of a burglary (moderate weight); and (4) the murders were committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification (CCP) (great weight). The trial court found one statutory mitigating circumstance-the murders were committed while Gregory was under the influence of extreme mental or emotional disturbance (slight weight)-and six nonstatutory mitigating circumstances. Finding that the aggravating circumstances far outweighed the mitigating circumstances, the trial court sentenced Gregory to death for both murders.

Gregory v. State, 118 So.3d 770, 775-78 (Fla. 2013) (footnotes omitted).

          On direct appeal, Gregory raised five issues: (1) the trial court erred in denying his motion to disqualify the judge based on statements the judge made during a pretrial hearing; (2) the trial court erred in admitting into evidence threatening statements directed toward the victims made by Gregory to a co-worker eight months before the murders; (3) the trial court erred in admitting testimony from a witness who could not identify Gregory in court; (4) the trial court erred in admitting testimony about a statement Gregory made to one of the victims; and (5) the trial court erred in instructing the jury on and in finding CCP. Id. at 778 n.4. This Court denied Gregory relief on all claims and additionally found that the evidence was sufficient to support Gregory's first-degree murder convictions and that Gregory's death sentences were proportionate. Id. at 787.

         Gregory filed a timely Motion to Vacate Judgment and Sentence pursuant to Rule 3.851, raising twelve claims:

Claim I: Gregory received ineffective assistance of trial counsel during the guilt phase of his capital trial in violation of his Fifth, Sixth, Eight [sic], and Fourteenth Amendment rights due to trial counsel's failure to properly rebut the State's theory of prosecution, that he was motivated by jealous anger;
Claim II: Gregory received ineffective assistance of trial counsel during the guilt phase of his capital trial in violation of his Fifth, Sixth, Eight [sic], and Fourteenth Amendment rights due to trial counsel's failure to present the testimony of Sheri Meekins;
Claim III: Trial counsel provided ineffective assistance of counsel by failing to properly impeach State witness [sic] Patrick Giovine and Tyrone Graves. As a result of trial counsel's deficient performance, Mr. Gregory was deprived of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States and of his corresponding rights pursuant to the Declaration of Rights under the Constitution of the State of Florida;
Claim IV: Trial counsel provided ineffective assistance of counsel by failing to correct a wrongly transcribed word found in State's exhibit #73 and stipulating to the transcript's accuracy at trial, thereby violating Mr. Gregory's rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States and of his corresponding rights pursuant to the Declaration of Rights under the Constitution of the State of Florida;
Claim V: Trial counsel provided ineffective assistance of counsel by failing to review and investigate all of Mr. Gregory's juvenile justice records independently obtained by the Court and relied upon during the sentencing decision, thereby violating Mr. Gregory's rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States and of his corresponding rights pursuant to the Declaration of Rights under the Constitution of the State of Florida;
Claim VI: Gregory received ineffective assistance of trial counsel during the penalty phase of his capital trial in violation of his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States and of his corresponding rights pursuant to the Declaration of Rights under the Constitution of the State of Florida;
Claim VII: Florida's capital sentencing structure is unconstitutional, and couches an ineffectiveness claim therein;
Claim VIII: Ring v. Arizona, 536 U.S. 584 (2002), including an ineffectiveness sub-claim;
Claim IX: Cumulative error;
Claim X: Lethal Injection constitutes cruel and unusual punishment;
Claim XI: Gregory is entitled to know the identity of the execution team members; and
Claim XII: Competency at the time of execution.

         The trial court issued an order on January 27, 2015, granting an evidentiary hearing on Claims I through VI. Claims VII and VIII were summarily denied. Claims IX through XII were ...


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