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Calhoun v. State

Supreme Court of Florida

November 21, 2019

JOHNNY MACK SKETO CALHOUN, Appellant,
v.
STATE OF FLORIDA, Appellee. JOHNNY MACK SKETO CALHOUN, Petitioner,
v.
MARK S. INCH, etc., Respondent.

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

          An Appeal from the Circuit Court in and for Holmes County, Christopher Nida Patterson, Judge - Case No. 302011CF000011CFAXMX And an Original Proceeding - Habeas Corpus

          Robert Friedman, Capital Collateral Regional Counsel, and Stacy R. Biggart and Elizabeth Spiaggi, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant/Petitioner

          Ashley Moody, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent

          PER CURIAM.

         Johnny Mack Sketo Calhoun appeals the denial of his motion to vacate his conviction of first-degree murder filed under Florida Rule of Criminal Procedure 3.851, and he also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons below, we affirm the circuit court's order denying Calhoun relief from his conviction and deny his habeas petition.

         I. BACKGROUND

         The facts of this case, including the overwhelming evidence of Calhoun's guilt, were fully set out in this Court's opinion on direct appeal. See Calhoun v. State, 138 So.3d 350 (Fla. 2013), cert. denied, 135 S.Ct. 236 (2014). Briefly, between the evening hours of December 16, 2010, and the morning hours of December 17, 2010, Calhoun kidnapped the victim, Mia Chay Brown, from his trailer in Holmes County, Florida, bound her with coaxial cable and duct tape and forced her into the trunk of her own car. Id. at 367. Calhoun then drove the victim's car to a convenience store located between Enterprise and Hartford, Alabama, where he was seen by witnesses at approximately 6 a.m. on December 17, including one witness who testified that Calhoun had scratches and dried blood on his hands and was driving a car that matched the description of the victim's vehicle. Id. at 355, 366. Within hours of Calhoun's stopping at the convenience store, other witnesses reported seeing smoke from the highway in Geneva, Alabama. Id. at 356. The victim's burned body and car were found on December 20 in a wooded area in Geneva, Alabama, which was approximately 1488 feet from a campsite that Calhoun was known to frequent, see id. at 366-67, approximately thirteen miles south of the Alabama convenience store[1] where Calhoun was seen on the morning of December 17, approximately ten miles north of Calhoun's trailer in Florida, see id. at 356, 363, and approximately 1.5 miles from an Alabama residence belonging to acquaintances of Calhoun's, one of whom found a wet and dirty Calhoun wrapped in sleeping bags and lying on the ground in her family's shed on the morning of December 18, and invited him inside her family's home, see id. at 355-56. Calhoun left the home of his acquaintances shortly after the acquaintances learned that he and the victim had been reported missing. Id. at 355. Two days later, on December 20, law enforcement found him hiding under his bed in his trailer and arrested him. Id. at 354, 357.

         After hearing the evidence summarized in this Court's decision on direct appeal, including witness accounts tying the victim to Calhoun and his trailer shortly before her disappearance and tying Calhoun to the victim's car shortly before her murder, DNA evidence placing both Calhoun and the victim's blood on the same blanket in Calhoun's trailer, DNA evidence establishing that blood on the cardboard of a roll of duct tape recovered from Calhoun's trailer was a major donor match to the victim and a minor donor partial match to Calhoun, DNA evidence placing the victim's hair in Calhoun's trailer, and testimony establishing that items belonging to the victim were recovered from Calhoun's trailer, id. at 366, Calhoun's jury found him guilty of first-degree murder and kidnapping, id. at 358. Following the penalty phase presentation, the jury recommended death by a vote of nine to three for the murder. Id. at 359. The trial court followed the jury's recommendation and sentenced Calhoun to death for the murder and also sentenced Calhoun to 100 years of imprisonment for the kidnapping. Id.

         On direct appeal, this Court affirmed Calhoun's convictions and sentences.[2]Id. at 368. Thereafter, the United States Supreme Court denied Calhoun's petition for a writ of certiorari. Calhoun v. Florida, 135 S.Ct. 236 (2014).

         In 2015, Calhoun filed an initial motion for postconviction relief, which the circuit court subsequently granted him leave to amend four times. Following an evidentiary hearing, the circuit court denied relief on all of Calhoun's guilt-phase claims but vacated Calhoun's death sentence and ordered a new penalty phase pursuant to Hurst v. State, 202 So.3d 40 (Fla. 2016). Calhoun appeals the circuit court's denial of several of his guilt-phase claims, the circuit court's denials of motions in which Calhoun sought to amend his postconviction motion two additional times and to reopen the evidentiary hearing, and the circuit court's use of the State's written arguments in its order denying relief on Calhoun's guilt-phase claims. He also petitions this Court for a writ of habeas corpus.

         II. POSTCONVICTION APPEAL

         A. Newly Discovered Evidence

         Calhoun first claims that newly discovered evidence pertaining to Doug Mixon, which Calhoun argues implicates Mixon in the victim's murder, requires a new trial. More specifically, Calhoun contends that Mixon, who is the father of Calhoun's former girlfriend, told Robert Vermillion, who is related to the victim's husband, that Mixon murdered the victim. Calhoun also claims that Natasha Simmons, whose former boyfriend is acquainted with Mixon, had a suspicious encounter with Mixon near the Alabama-Florida line around the time of the victim's disappearance that tends to implicate Mixon in the victim's murder. We disagree that this evidence entitles Calhoun to a new trial because when considered cumulatively with all of the evidence that would be admissible on retrial, the newly discovered evidence from Simmons and Vermillion-which, as the circuit court found, poses admissibility and credibility problems-does not so weaken the State's case against Calhoun as to give rise to a reasonable doubt as to Calhoun's culpability.

         As we have explained, the following two requirements must be met to set aside a conviction 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. See Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the second prong of the Jones II test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Jones II, 709 So.2d at 526 (quoting Jones v State, 678 So.2d 309, 315 (Fla. 1996)).

Marek v. State, 14 So.3d 985, 990 (Fla. 2009).

         In this case, the State does not dispute that the evidence from Simmons and Vermillion is newly discovered evidence within the meaning of the first prong of the Jones II test. Therefore, the only question is whether the newly discovered evidence satisfies the second prong, namely whether it would probably produce an acquittal on retrial. This Court has explained that, in evaluating the second prong,

the postconviction court must "consider all newly discovered evidence which would be admissible" and must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." [Jones v. State, 591 So.2d 911, 916 (Fla. 1991) (Jones I)]. 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 this 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.
Jones II, 709 So.2d at 521 (citations omitted).

Marek, 14 So.3d at 990; see also Swafford v. State, 125 So.3d 760, 775-76 (Fla. 2013) ("The Jones [II] standard requires that, in considering the effect of the newly discovered evidence, we consider all of the admissible evidence that could be introduced at a new trial. In determining the impact of the newly discovered evidence, the Court must conduct a cumulative analysis of all the evidence so that there is a 'total picture' of the case and 'all the circumstances of the case.'" (citation omitted) (quoting Lightbourne v. State, 742 So.2d 238, 247 (Fla. 1999))).

         Further, when, as in Calhoun's case, the circuit court rules on a newly discovered evidence claim after an evidentiary hearing, 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). This Court "review[s] the trial court's application of the law to the facts de novo." Id.

         In this case, as the circuit court ruled, the newly discovered evidence poses both admissibility and credibility problems. Regarding Vermillion, Mixon's alleged statements to Vermillion requesting forgiveness for doing a lot of things he is not proud of are hearsay and, thus, not admissible as substantive evidence. Moreover, in light of Calhoun's direction not to call Doug Mixon as a witness at trial, it would not be possible to impeach Mixon-who testified at the evidentiary hearing and denied that he was involved in or had confessed to the victim's murder-with his alleged statement to Vermillion. But, even if this evidence were admissible, Vermillion testified at the postconviction evidentiary hearing that he could not say that Mixon had confessed to killing the victim, only that Vermillion believed Mixon implied it. After hearing testimony at the evidentiary hearing from both Vermillion and Mixon, who denied any involvement in the victim's murder and denied having confessed to it, the circuit court found that Vermillion's testimony is "false." We defer to that finding because competent, substantial evidence supports it. See Green, 975 So.2d at 1100.

         Similar credibility problems exist with Simmons's account. Simmons testified at the postconviction evidentiary hearing that she picked up Doug Mixon and her then-boyfriend near the Alabama-Florida line around the time of the victim's disappearance and that Mixon had blood on his chest and was running with a gas can.[3] Although Simmons's account of her suspicious encounter with Mixon-aside from any hearsay statements by Mixon-would be admissible as substantive evidence, competent, substantial evidence supports the circuit court's finding that Simmons did not relay this information to law enforcement despite Simmons's claim that she had, severely undermining her credibility. Specifically, Simmons testified at the evidentiary hearing that she reported the incident to the then-sheriff of Geneva County, Alabama, Greg Ward, but Ward told her she was wasting her time because the killer had already been caught and had confessed. However, Ward testified at the evidentiary hearing that he did not recall getting any information from Simmons about anything and that he did not recall Simmons reporting any encounter with Mixon. Ward was adamant that he never told Simmons to forget about her encounter with Mixon because the killer had been caught and had confessed. Rather, Ward testified that if someone had reported something like that, he would have given the information to the Alabama Bureau of Investigation (ABI) because the case was turned over to ABI after the victim's body and vehicle were found in Geneva County, Alabama. The lead investigator for the State of Florida, Lieutenant Michael Raley of the Holmes County Sheriff's Office, testified at the postconviction evidentiary hearing that neither Ward nor the ABI had provided any information about statements from Simmons regarding Doug Mixon's involvement in the victim's murder. Thus, despite its admissibility, as the circuit court found, there are credibility concerns with Simmons's testimony.

         But even assuming no admissibility or credibility problems with Vermillion's testimony and no credibility problem with Simmons's testimony, when the newly discovered evidence from Simmons and Vermillion regarding Doug Mixon is considered cumulatively with all of the evidence that would be admissible on retrial, it does not so weaken the State's case against Calhoun as to give rise to a reasonable doubt as to Calhoun's culpability. The evidence shows that the victim was going to pick up Calhoun, not Mixon, when she disappeared on the evening of December 16, 2010. DNA evidence places Calhoun's blood, not Mixon's, near the victim's blood on a blanket in Calhoun's trailer. DNA evidence also establishes that blood found on the cardboard of a roll of duct tape taken from Calhoun's trailer was a major donor match to the victim and a minor donor partial match to Calhoun. An eyewitness places a scratched and bloody Calhoun, and no one else, driving a car that matched the description of the victim's vehicle in the early morning hours of December 17, the day after the victim disappeared, just hours before witnesses saw smoke from the highway near where the victim's burned car and body (which had tape on the neck) were eventually found. The next morning, on December 18, Calhoun's acquaintance found him, and no one else, wrapped in sleeping bags and lying on the ground in her family's shed approximately 1.5 miles from where the victim's burned car and body were found. And Calhoun, not Mixon, evaded law enforcement and was found hiding under his bed.

         Accordingly, because Calhoun has failed to establish that newly discovered evidence from Simmons and Vermillion would probably produce an acquittal on retrial, we affirm the circuit court's denial of relief as to this claim. See Jones II, 709 So.2d at 521; cf. Preston v. State, 970 So.2d 789, 801 (Fla. 2007) (holding that when the newly discovered evidence was considered with all of the evidence that would be admissible in a retrial, "in light of the overwhelming evidence of [the defendant's] guilt presented at trial," the newly discovered evidence "would probably not produce an acquittal on retrial").

         B. Ineffective Assistance During the Guilt Phase

         Next, Calhoun argues that trial counsel was ineffective during the guilt phase (1) for failing to investigate Doug Mixon's alibi; (2) for failing to consult with or hire a forensic pathologist and a digital forensic expert; and (3) in handling twelve trial witnesses.

         Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), 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.

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) (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 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)).

         As explained below, we affirm the circuit court's denial of relief as to each of Calhoun's ineffective assistance of counsel claims.

         (1) Doug Mixon's Alibi

         Calhoun first argues that his trial counsel was ineffective for failing to investigate Doug Mixon's alibi by speaking with Jose Contreras, in whose Geneva, Alabama, home Mixon and his then-girlfriend claimed in their pretrial depositions to have spent the night of December 16, 2010, when the victim disappeared. Contreras testified at the postconviction evidentiary hearing that, if trial counsel had spoken with him, he would have informed counsel that Mixon had not spent the night of December 16, or any other night, at his home. Contreras further testified that he would have informed counsel that Mixon confessed to Contreras that he had murdered the victim and that Contreras had reported what Mixon told him to Officer Ricky Morgan of the Geneva Police Department.

         Other witnesses at the evidentiary hearing contradicted Contreras's testimony. Specifically, Officer Morgan testified that Contreras never told him that Mixon had confessed to the victim's murder, and that if he had received this information, he would have provided it to the Holmes County Sheriff's Office. Lieutenant Raley of the Holmes County Sheriff's Office testified that he had never been informed by the Geneva Police Department or any other agency that Mixon had confessed to Contreras. Doug Mixon also testified at the evidentiary hearing and denied involvement in the victim's murder, denied knowing anything about the victim's murder, and denied that he had confessed to the victim's murder. After hearing from all of these witnesses, the circuit court found that Contreras's statements were "false." We defer to this finding because it is supported by competent, substantial evidence. See Porter v. State, 788 So.2d 917, 923 (Fla. 2001) ("So long as [the trial court's] decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court. We recognize and honor the trial court's superior vantage point in assessing the credibility of witnesses and in making findings of fact." (citation omitted)). And we agree with the circuit court that trial counsel was not deficient for failing to discover Contreras's false statements regarding Doug Mixon, most of which constitute inadmissible hearsay.

         Calhoun also cannot establish prejudice. There is no reasonable probability that the jury's verdict would have been different if trial counsel had spoken with Contreras about Mixon's alibi for the evening of the victim's disappearance or presented the admissible portions of Contreras's testimony at trial. At trial, the jury did not hear that Mixon had supposedly spent the evening of December 16 at Contreras's home; Contreras's name was never even mentioned. Rather, the jury heard testimony from Doug Mixon's daughter Brittany and Lieutenant Michael Raley, lead investigator for the Holmes County Sheriff's Office, that Mixon was with his then-girlfriend, back and forth between Geneva, Alabama, and Bonifay, Florida, on December 16 and 17, 2010, and that Mixon had spent the evening of December 16 with his then-girlfriend, in Geneva. The State did not argue that Mixon's alibi made it physically impossible for him to have been involved in the victim's kidnapping or murder. And, at Calhoun's insistence, Mixon did not testify at trial, and trial counsel made a strategic decision not to have Mixon's then-girlfriend testify. Thus, if trial counsel had spoken with Contreras, and if Contreras had testified that Mixon had not spent the evening of December 16 at his home, without the context of inadmissible hearsay regarding Mixon's supposedly spending the evening of December 16 at Contreras's home and allegedly confessing to the victim's murder, the evidentiary value of Contreras's testimony would have been miniscule, at best. All the jury would have learned from Contreras was where Mixon was not on the evening of December 16. In light of the overwhelming evidence of Calhoun's guilt, there is no reasonable probability that, had trial counsel spoken with Contreras about Mixon's alibi or presented the admissible portions of Contreras's testimony to the jury, the jury's verdict would have been different. Thus, Calhoun cannot establish prejudice. See Henry, 948 So.2d at 621 (quoting Strickland, 466 U.S. at 694).

         Accordingly, we affirm the circuit court's denial of relief as to this claim.

         (2) Forensic Experts

         Next, Calhoun contends that trial counsel was ineffective for failing to consult with and hire two forensic experts, namely a forensic pathologist and a digital forensic expert. As explained below, because trial counsel was not deficient and, in any event, there is no prejudice, ...


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