IN THE FLORIDA SUPREME COURT. v. CASE NO. SC Lower Court Case No

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1 IN THE FLORIDA SUPREME COURT PATRICK CHARLES HANNON, Petitioner, v. CASE NO. SC Lower Court Case No STATE OF FLORIDA, Respondent. APPEAL FROM THE CIRCUIT COURT IN AND FOR HILLSBOROUGH COUNTY STATE OF FLORIDA AMENDED PETITION PAMELA H. IZAKOWITZ Florida Bar No Capital Collateral Regional Counsel -South P.O. Box S. Westland Avenue Tampa, FL (813) Attorney for Mr. Hannon

2 JURISDICTIONAL STATEMENT In Trepal v. State, 754 So.2d 702, 707 (Fla. 2000), this Court established the parameters of interlocutory appeals in collateral proceedings noting that it accepted jurisdiction under Article V, Sec. 3 (b)(1), Fla. Const. This Court further held that:... to obtain relief an appellant must establish that the order compelling discovery does not conform to the essential requirements of law and may cause irreparable injury for which appellate review would be inadequate. Trepal, 754 So. 2d at 707. Mr. Hannon alleges both in this amended petition for extraordinary relief, and requests that this Court accept jurisdiction over this matter under Article V, Sec. 3 (b)(1) of the Florida Constitution. STATEMENT OF FONT This amended petition is typed in Courter New 12 point not proportionally spaced. 2

3 ISSUE PRESENTED In its efforts to re-try Mr. Hannon s co-defendant, James Acker for first-degree murder, the State Attorney for the Sixth Judicial Circuit sought to conduct DNA testing of the evidence from the Acker trial. The problem was that the evidence in Mr. Acker s case was precisely the same evidence used in Mr. Hannon s case and helped convict Mr. Hannon. In fact, the evidence the State sought to test was Mr. Hannon s fingerprints and palm prints. No physical evidence ever linked Mr. Acker to the crime scene. The State conducted DNA testing in Acker s case without notifying Mr. Hannon of the testing until after the fact. Mr. Hannon s trial judge was not made aware of the testing. When counsel for Mr. Hannon learned of the testing, she objected. The State proceeded to conduct DNA testing on Mr. Hannon s evidence despite the defense objection. The issue presented is whether the State was required to show cause to conduct DNA testing in Mr. Acker s case that was the exact same evidence in Mr. Hannon s case so that it could engage in post-conviction discovery. And if so, has good cause been shown. 3

4 FACTS UPON WHICH PETITIONER RELIES The Circuit Court for the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, entered the judgment of conviction and sentence of death at issue in this case. The Hillsborough County grand jury indicted Mr. Hannon for two counts of first-degree premeditated murder on February 13, A superseding indictment was filed on March 27, 1991 charging Mr. Hannon and co-defendant, Ronald Richardson, with the same premeditated murders. By executive order, the governor assigned the State Attorney for the Sixth Judicial Circuit to prosecute the case in place of the State Attorney for the Thirteenth Judicial Circuit because of a conflict of interest. The change of State Attorney was granted because one of the State s witnesses, who was also the sister of co-defendant James Acker, was employed by the Hillsborough County State Attorney s office. The trial began on July 15, 1991 and lasted until July 24, On July 23, 1991, the jury found Mr. Hannon guilty of two counts of first-degree premeditated murder after Mr. Richardson turned State s evidence and testified against him. The penalty phase was held on July 24, 1991 and lasted less than thirty (30) minutes. The jury voted in favor of death 4

5 sentences for both murder counts. On August 5, 1991, the court sentenced Mr. Hannon to die in the electric chair for both counts of murder. On direct appeal, this Court affirmed the conviction and sentence. Hannon v. State, 638 So.2d 39 (Fla. 1994) reh. den. September 8, Mr. Hannon s petition for certiorari review was denied. Hannon v. Florida, 115 S. Ct at 1118 (1995). Because Mr. Hannon's sentence became final after January 1, 1994, Mr. Hannon was required to file his motion for postconviction relief within one (1) year, pursuant to the newlyenacted Rule This Court granted Mr. Hannon an extension of time in which to file the Rule motion, ordering that it be filed by April 22, Hannon v. State, No. 78,678 (Fla. April 22, 1996)(order granting extension of time). On March 17, 1997, Mr. Hannon filed an initial Rule motion in order to toll the time in which to file his Petition for Writ of Habeas Corpus in federal court. On April 22, 1997, Mr. Hannon filed an Amended Rule motion. He filed a First Amended Motion on April 20, On November 16, 2001, the Circuit Court granted an evidentiary hearing on several of Mr. Hannon s claims. An evidentiary 5

6 hearing has been set for February 18-20, On March 9, 2001, the Second District Court of Appeals granted co-defendant James Acker a new trial based on ineffective assistance of counsel. Acker v. State, 787 So. 2d 77 (2 nd DCA 2001). As the State prepared to go forward for the Acker re-trial, it sought to have the evidence from both cases DNA tested to determine if there was any physical evidence linking Mr. Acker to the crime. On October 15, 2001, undersigned counsel received a letter from James Hellickson, specially-designated assistant state attorney, who was re-prosecuting Mr. Acker. He asked undersigned counsel for permission to have the Florida Department of Law Enforcement (FDLE) conduct DNA testing on Mr. Hannon s fingerprints and palm prints that were used to convict Mr. Hannon at trial. Mr. Hellickson said he wanted this information for the Acker trial. In addition to the letter, Mr. Hellickson attached the Motion to Release Evidence in Mr. Acker s case. What the motion omitted was that the exhibits the State sought to release were of Mr. Hannon s palm and fingerprints, and not Mr. Acker s. In its motion, the State sought Exhibit 32: drywall from the victim s apartment. The State failed to mention to Mr. Acker s trial judge that the drywall contained the palm print of Patrick 6

7 Hannon. Exhibit 31B the front door of the victims apartment contained the ring fingerprint of Mr. Hannon. See, Royce Wilson testimony at p On October 16, 2001, undersigned counsel responded by letter, saying that the State was seeking information in Mr. Acker s case that could adversely impact on Mr. Hannon s case. Undersigned counsel objected and said the State must show good cause to obtain discovery in Rule proceedings and no good cause existed to obtain information from Mr. Hannon s case that pertained to Mr. Acker. Undersigned counsel also noted that the State failed to make a showing of good cause for DNA testing as set out in Fla. Stat or Lewis v. State, 656 So. 2d 1248 (Fla. 1994). On October 25, 2001, the State said that DNA testing in the Acker case had already been completed without damaging the previously identified areas of Hannon s fingerprints. Counsel for Mr. Hannon was not notified of the testing until after the testing had been completed. The DNA testing done by the State involved evidence from Mr. Hannon s case because the evidence in both cases was precisely the same. Royce Wilson, the State witness who identified Mr. Hannon s fingerprints and testified against him at trial, also testified in Mr. Acker s case. Mr. Wilson, the 7

8 latent print examiner with the Hillsborough County Sheriff s Department, testified at Mr. Acker s trial that he found a print on the front door that belonged to Mr. Hannon (State v. Acker, Case No , p.390), and a print on the stairwell wall that appeared to be in blood, that he was able to identify as Mr. Hannon s. (State v. Acker, p. 387). When asked by the prosecution if he found any of Mr. Acker s fingerprints at the crime scene, the witness said no. (State v. Acker, p. 421). On October 26, 2001, undersigned counsel filed a Motion to Prohibit DNA Testing and moved to prohibit use of any DNA testing obtained from Mr. Acker to be used against Mr. Hannon. The trial court heard argument on the motion at the November 16, 2001 Huff hearing and denied the motion. At the same time, counsel also filed a Motion to Intervene and Prohibit Destruction of Evidence in the Acker case (Case No ) In that motion, counsel argued that Mr. Hannon should be allowed to intervene in Mr. Acker s case; that counsel be noticed of all proceedings in Mr. Acker s case that involve testing or release of evidence from Mr. Hannon s case; that counsel be noticed of any results, findings or raw data of testing that had been completed at that point; and that if testing had not been completed, that counsel be given an 8

9 opportunity to appear in court and be heard on the issue. Mr. Acker s trial court judge denied the motion. At Mr. Hannon s Huff hearing, the State responded to the defense motion and argued that it did not believe, nor does it now believe, that it needed to obtain that [Mr. Hannon s] lawyer permission to test in the co-defendant s case. By the time of Mr. Hannon s motion objecting to the testing and seeking to prohibit such testing was set before the Acker trial court, the testing had been completed. See, State s Response to Motion to Prohibit DNA Testing, filed November 13, The DNA testing was submitted on October 18, 2001 by the Pinellas County Sheriff s Department, two days after Mr. Hannon s October 16, 2001 letter objecting to the DNA testing in Mr. Hannon s case. Counsel also told Mr. Hellickson over the telephone on October 16, 2001 that she objected to the State testing evidence in Mr. Hannon s case. Counsel for Mr. Hannon argued at the Huff hearing that any testing done in Mr. Acker s case should be prohibited from being used in the Hannon case. Counsel argued that the State should not be permitted to conduct DNA testing in postconviction proceedings in an attempt to resuscitate a constitutionally unreliable trial by substituting new evidence 9

10 not submitted to the crucible of an adversarial testing subject to compliance with the Sixth Amendment. Mr. Hannon s counsel also argued that the State should be required to make a showing of good cause for testing DNA evidence as set out for defendants in the newly-adopted provisions contained in Fla. Stat The judge rejected Mr. Hannon s arguments on November 26, A notice of appeal was filed on December 3, Counsel for Mr. Hannon filed Designations to the Clerk and Court Reporter in Hillsborough County Circuit Court, seeking the transcript of the Huff hearing to be used in this interlocutory appeal. At the time of filing this Amended Initial Petition, however, the record on appeal has not been completed. 10

11 NATURE OF THE RELIEF SOUGHT Mr. Hannon asserts that the trial court order of November 26, 2001, refusing to prohibit the testing and use of DNA evidence against Mr. Hannon, does not conform to the essential requirements of law and may cause irreparable injury for which appellate review would be inadequate in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth amendments to the United States Constitution, and the corresponding provisions of the Florida Constitutions for each of the reasons set forth below. Accordingly, Mr. Hannon seeks to have the order vacated. 11

12 ARGUMENT IN SUPPORT OF PETITION THE TRIAL COURT ERRONEOUSLY RULED THAT THE STATE WAS EXEMPT FROM MAKING ANY GOOD CAUSE SHOWING IN SUPPORT OF ITS MOTION FOR POST-CONVICTION DISCOVERY, AND AS A RESULT, ABUSED ITS DISCRETION BY ALLOWING THE STATE TO USE DNA TESTING AGAINST MR. HANNON. A. Introduction. In Rule proceedings, this Court authorized prehearing discovery: On a motion which sets forth good reason, however, the court may allow limited discovery into matters which are relevant and material... State v. Lewis, 656 So.2d 1248, 1250 (Fla. 1994)(quoting and adopting language from Davis v. State, 624 So.2d 282, 284 (Fla. 3d DCA 1993))(emphasis added). 2 But, this Court cautioned: We conclude that this inherent authority should be used only upon a showing of good cause. Lewis, 656 So.2d at 1250(emphasis added). Subsequently, this Court specifically found that to engage in discovery and conduct DNA testing on evidence in the State s possession, a criminal defendant in post-conviction proceedings must establish that the proposed DNA testing could not have been done sooner. Zeigler v. State, 654 So.2d 1162 (Fla. 1995). 3 And, the law of this State is that procedural 2 A request for access to evidence possessed by another party is a discovery request. 3 Pending before this Court is the appeal in Gudinas v. State, Sup Ct. No. SC There, the State argues that 12

13 default rules apply equally to the State. Cannady v. State, 620 So.2d 165, 170 (Fla. 1993). The legislature adopted Fla. Stat setting a procedure for post-conviction DNA testing. Subsection (2) of is titled: Method for seeking postsentencing DNA testing. This statute seemingly overturned Zeigler and provided a post-conviction procedure allowing a criminal defendant to obtain DNA testing of evidence. By its order of November 26, 2001, the circuit court allowed the State to do DNA testing of Mr. Hannon s evidence without requiring a showing of good cause that the proposed DNA testing would produce admissible evidence relevant and material to Mr. Hannon s claims that his 1991 trial was a constitutionally inadequate adversarial testing. The State has admitted that it would use Mr. Hannon s DNA in the event of a new trial, new penalty phase or perhaps, in assessing trial counsel s performance under the Strickland standard. State s Response to Motion to Prohibit DNA Testing Zeigler precludes a capital post-conviction discovery request by the defendant for access to evidence in the State s possession to conduct DNA testing because the defendant failed to show that the results of the testing would not be procedurally barred and thus admissible. See, State s Answer Brief at There does not seem to be a way to reconcile the State s position here with its position in Gudinas, unless the State is suggesting that Zeigler does not apply to the State. 13

14 at p. 3. The trial judge in Mr. Hannon s case has, in essence, ruled that the procedural requisites for post-conviction DNA testing as set forth in Fla. Stat do not apply to the State. The trial court erred in concluding that the State need not make a showing of good cause and the State s justification does not constitute good cause. B. Purpose of Rule Proceedings. The predecessor provision to Rule was adopted to facilitate and expedite the handling of post-conviction claims. Roy v. Wainwright, 151 So.2d 825, 827 (Fla. 1963). This Court explained: The rule is intended to provide a complete and efficacious post-conviction remedy to correct convictions on any grounds which subject them to collateral attack. Roy, 151 So.2d at 828. In State v. Matera, 266 So.2d 661, 665 (Fla. 1972)(italics in original), this Court addressed the proper procedure adopted in Rule and concluded that the Petition for motion to vacate in this case is a classic example of what post-conviction relief is not intended to be, that is, a procedure for retrial of matters of questions of law litigated at trial. Thus, it is clear that Rule may not be used to simply retry the issue of guilt and 14

15 innocence. A Rule may be used to challenge the constitutional adequacy of the trial. A criminal defendant filing a Rule motion must file cognizable claims that undermine confidence in the constitutional adequacy of the trial. When a criminal defendant meets his burden of persuasion, a new trial is required. At that new trial, the defendant is entitled to constitutional rights to which he is not entitled in the Rule proceedings. For example, he is entitled to have a unanimous jury determine whether the State has proven guilt beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); Duncan v. Louisiana, 391 U.S. 145, 149 (1968). And, he also is entitled to effective representation. A Rule evidentiary hearing is not a criminal trial, and a criminal trial is not a Rule evidentiary hearing. A criminal defendant who proclaims at his arraignment I am innocent is entitled to all of the rights guaranteed by the Sixth Amendment, including the right to a jury trial. A criminal defendant who has been convicted at a trial and asserts in a Rule motion I am innocent is entitled to nothing. I am innocent is not a cognizable claim in a Rule motion. See State v. Matera. In a Rule motion, a defendant must plead facts that taken as true establish a 15

16 legally cognizable challenge to the validity and reliability of the trial. Richardson v. State, 546 So.2d 1037 (Fla. 1989). The focus of the Rule proceedings is the constitutional fairness and adequacy of the trial. The focus of the trial is on the guilt or innocence of the defendant. A convicted defendant who claims he is innocent must pled specific facts that were unknown at his trial and convince the judge that, when the new facts pled are evaluated against the evidence which was introduced at the trial, it is probable that the jury would have acquitted. Jones v. State, 591 So.2d 911, 916 (Fla. 1991). If that burden is met, then a new trial is granted. And the new trial must comport with the Sixth Amendment. Alternatively, if the defendant pleads and proves that the State possessed exculpatory evidence that it failed to disclose and/or the trial unreasonably failed to discover, and the previously unpresented exculpatory evidence undermines confidence in the guilty verdict, a new trial is required. Accordingly, a defendant s proffer of a witness testimony that supports his not guilty plea is relevant and admissible. In post-conviction, such testimony may not be admissible absent a showing it could not have been discovered sooner and that it is relevant to a cognizable claim. Jones 16

17 v. State. Since this Court explained in State v. Lewis that post-conviction discovery requires a showing of good cause, i.e. that the evidence sought is relevant and material, resolution of good cause requires examination of the cognizable claims by the criminal defendant. C. Mr. Hannon s Rule Allegations. In his Rule motion, Mr. Hannon made no argument relating to the physical evidence. He did not allege that no adversarial testing occurred at his trial regarding DNA evidence. Mr. Hannon did not allege that either the State withheld exculpatory information regarding the testing or that trial counsel unreasonably failed to adequately investigate the state s forensic evidence. At no time did the State feel it was prudent to retest any evidence in preparation for any subsequent evidentiary hearing in Mr. Hannon s case. 4 The 4 In Amos King v. State, SC 02-1, argued before this Court on January 16, 2002, Assistant Attorney General Carol Dittmar told the Court that after the Legislature passed the DNA statute, Pinellas County State Attorney Bernie McCabe ordered that all physical evidence in all capital cases be tested for DNA and he wanted to go back and review in every death case out of his office what evidence was available and to go back and have it tested, whatever could be tested. Now, I don t know where they are in that process. See, attached Gavel to Gavel Transcript at p. 10. It is clear that the Office of the State Attorney for Sixth Judicial Circuit is conducting unilateral testing, without notice or the opportunity to be heard. Huff v. State, 622 So. 2d 982, 983 (Fla. 1993); Smith v. State, 708 So. 2d 253, 255 (Fla. 1998). This unilateral testing, in which the 17

18 State only opted to test evidence in an effort to find incriminating evidence against Mr. Acker for his re-trial. Instead of finding evidence against Mr. Acker, however, the State found incriminating evidence to be used against Mr. Hannon. 5 D. State s Argument for Post-Conviction Discovery. The State argued it is not conceding anything in Hannon, and that it has an inherent right to conduct any testing that it wants in Mr. Acker s case. State s October 25, 2001 letter to counsel. The State has said that the testing was being conducted for the Acker retrial because the State learned that FDLE believed DNA analysis was now technologically possible though the area had been processed with coomassie blue and the FBI, in 1991/2, said further testing could not be done after coomasie blue was utilized. State Attorney October 25, 2001 letter to counsel. State is reopening an investigation into a criminal case while a conviction remains undisturbed and the defendant remains sentenced to death, does not comport with due process. 5 On November 9, 2001, Mr. Acker was found guilty as charged and sentenced to life in prison. No DNA evidence was used against him at his trial. 18

19 The State is grossly mistaken. The State does not have carte blanche authority to test evidence in a death penalty case. The State is simply substituting the name of Hannon with the name of Acker, but is refusing to acknowledge that the evidence in both cases is exactly the same. The State is attempting to bypass the rules by arguing that it pertains to Mr. Acker s case but fails to address the fact that it is the exact same evidence used in Mr. Hannon s case and now, intends to use the incriminating evidence against Mr. Hannon. The State fails to address State v. Lewis, 656 So.2d at 1250, and the requirement that in order to obtain discovery in Rule proceedings, a party must make a showing of good cause that the evidence it seeks is relevant and material to the Rule proceedings. The State does not address the caveat in Rule 3.220(c), which permits pretrial discovery by the prosecutor subject to constitutional limitations. Under well-established law, the State was obligated to show good cause and has failed to do so. E. Cause Must Be Shown. A Rule court may allow limited discovery into matters which are relevant and material. State v. Lewis, 656 So.2d at However, the court s inherent authority [to permit discovery] should be used only upon a showing of good 19

20 cause. Id. The DNA testing is properly categorized as discovery. In circumstances where a capital post-conviction defendant was seeking access to evidence in the State s possession to conduct DNA testing, the access was denied because the defendant could not establish that he could not previously make the request in conformity with the time limitations imposed by Rule Zeigler v. State. The State is currently relying on the decision in Zeigler in proceedings pending before this Court in Gudinas v. State, Sup Ct. No. SC00-954, as precluding access to the State s evidence for purposes of conducting DNA testing. Here, the State conducted DNA testing and will use it against Mr. Hannon in the event of a new trial, new penalty phase, or perhaps in assessing trial counsel s performance under the Strickland standard. State s Response to Motion to Prohibit DNA Testing at p. 3. By doing DNA testing, the State now seeks a do-over, eleven years later. Under the law enunciated in Zeigler, the State cannot show good cause. F. The New DNA Legislation. The State wants to re-prosecute the case without having to admit error or concede that a new trial is necessary. The State does not want to rely on the evidence it produced at 20

21 trial, even though in post-conviction, it should be limited to the record that was presented at trial. The State is fishing for new evidence to add to the evidence upon which Mr. Hannon s conviction rests. 6 The Florida legislature passed Fla. Stat. Sec (hereinafter referred to as DNA statute ). The DNA statute confers to the defendant the ability to request DNA testing in his case. However, the defendant cannot make this request lightly. He can only request DNA testing if he petitions the court to order an examination of the physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced which may contain DNA and which would exonerate that person or mitigate the sentence the person received. Sec (1)(a) Fla. Stat. The legislature placed great emphasis on limiting the evidence to that which was collected at the time of the crime. This shows a continued effort by the legislature to have these claims assessed in the context of the record and evidence adduced at trial. In addition to petitioning the court, a defendant has two years to petition the court after collateral counsel is 6 The State wants to use new evidence that will never be subjected to the crucible of adversary testing as guaranteed by the Sixth Amendment. 21

22 appointed and must make his petition under oath. His petition must allege: 1. A statement of the facts relied on in support of the petition including a description of the physical evidence containing DNA evidence to be tested and, if known, the present location or the last known location of the evidence and how it was originally obtained; 2. A statement that the evidence was not previously tested for DNA or a statement that the results of any previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques would likely produce a definitive result; 3. A statement that the sentenced defendant is innocent and how the DNA testing requested by the petition will exonerate the defendant of the crime for which the defendant was sentenced or will mitigate the sentence received by the defendant for that crime; 4. A statement that identification of the defendant is a genuinely disputed issue in the case, and why it is an issue; and; 5. Any other facts relevant to the petition, 6. A certificate that a copy of the petition has been served on the prosecuting authority. Sec (2)(a) Fla. Stat. The statute, however, is silent as to the requirements for the State when it requests DNA testing of evidence. Mr. Hannon suggests that the State should be compelled to follow the same rules as the defense. In this case, the State would be hard pressed to show how any results from its testing 22

23 would affect the Brady/newly-discovered evidence analysis. Any results would be extra-record information that could not be used to argue harmless error. At the very least, the State should be required to follow the rules of court and be allowed to prosecute the case only once. The State has no right to a do over of evidence testing when it is no longer confident in the results it presented at trial. Under these circumstances, if there is to be a do-over, it should be of the entire trial. The process the State has chosen carries great risk of irreparable harm to Mr. Hannon. WHEREFORE, for the foregoing reasons, Mr. Hannon respectfully requests that this Court vacate the order permitting the State to use DNA testing results against Mr. Hannon in any pending or future proceedings. 23

24 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Amended Petition for Extraordinary Relief has been furnished by United States Mail, first-class postage prepaid to Jim Hellickson/Robert Lewis, Office of the State Attorney, P.O. Box 5028, Clearwater, FL, and Candance Sabella, Office of the Attorney General, 2002 N. Lois Avenue, Suite 700, Tampa, FL this 4 th day of February, PAMELA H. IZAKOWITZ Florida Bar No Capital Collateral Regional Counsel - South P.O. Box S. Westland Avenue Tampa, FL (813) Attorney for Mr. Hannon cc: The Honorable J. Rogers Padgett Circuit Court Judge Courthouse Annex 801 E. Twiggs Avenue Tampa, FL

25 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Amended Petition satisfies the Fla. R. App. P (1) and (a)(2). PAMELA H. IZAKOWITZ Florida Bar No Capital Collateral Regional Counsel - South P.O. Box S. Westland Avenue Tampa, FL (813)