IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA GARY RICHARD WHITTON, Appellant, v. CASE NO. SC STATE OF FLORIDA, Appellee, Lower Tribunal Case No CF (Walton County) / PETITION SEEKING REVIEW OF NON-FINAL ORDER IN DEATH PENALTY POST CONVICTION PROCEEDINGS AND MOTION FOR STAY OF PROCEEDINGS COMES NOW, the Appellant, GARY RICHARD WHITTON, by and through undersigned counsel and hereby petitions this Court for review of non-final orders in his death penalty post conviction proceedings entered by the Honorable Kenneth L. Bell, First Judicial Circuit. Mr. Whitton also requests this Court stay the proceedings in the lower court. The issues presented in this Petition and Motion for Stay are similar to those presented to this Court in Bogle v State, SC currently pending in this Court. In support of this Petition and Motion for Stay, Mr. Whitton submits the following: JURISDICTION 1. Pursuant to Florida Rules of Appellate Procedure, 1

2 Rule 9.142(b) 1, Mr. Whitton files this Petition and invokes the jurisdiction of this Court in order to have it review nonfinal orders entered by the lower court (circuit court judge Kenneth L. Bell) and moves this Court to enter a stay of the proceedings in the lower court including an Order directing the State to cease DNA testing pending this interlocutory appeal. 2. This Court has original jurisdiction under article V, section 3(b)(1) of the Florida Constitution. See Trepal v. State, 754 So. 2d 702 at (Fla. 2000) and Amendments to Florida Rules of Appellate Procedure (Rule 9.142), 2002 WL (Fla.). BASIS FOR INVOKING JURISDICTION 1. Mr. Whitton invokes the jurisdiction of this Court to Stay the proceedings below and for an Order directing the State to cease DNA testing pending this appeal, and thereafter requests this Court reverse and vacate the lower court s orders and remand accordingly. A Stay pending appeal is necessary in order to prevent irreparable harm to Mr. Whitton. This Petition demonstrates a preliminary basis for relief [and] a departure from the essential requirement of law that 1 See Amendment to the Florida Rules of Appellate Procedure (Rule 9.142), 2002 WL (October 31, 2002). 2

3 may cause material injury for which there is no adequate remedy by appeal. See Amendment to Florida Rules of Appellate Procedure (Rule 9.142), 2002 WL *1 (Fla.). 2. In Mr. Whitton s case, the State intends to reopen the criminal investigation to conduct post-sentencing DNA testing. The State has shown no relevance or justification to request DNA testing on evidence that was previously analyzed. The State s intention comes at a time when conviction and sentence are in place, yet the State has failed to admit that there is anything wrong with Mr. Whitton s conviction and sentence. Additionally, the circuit court has ordered that the State may proceed with such testing, yet denied Mr. Whitton s motion for safeguards and Demand for Disclosure regarding the evidence If a stay is not ordered in this case, irreparable harm will occur to Mr. Whitton as a result of the circuit court s rulings regarding DNA testing and the denial of Mr. Whitton s Demand for Disclosure regarding DNA testing. There is a substantial likelihood that the evidence will be completely consumed by any said testing, and thus Mr. Whitton will be forever precluded from confronting the evidence, 2 The State is only required to disclose the final results of testing. (See Appendix B at pages 17-19). 3

4 denying him due process of law. ORDERS TO BE REVIEWED 1. On September 17, 2002, First Judicial Circuit Court Judge in and for Walton County, Kenneth L. Bell, entered a written order permitting the State to conduct DNA testing, amended October 2, This order permits the State to test numerous items, including trial exhibits # 8, 13, and 31 in the custody of the clerk of court and items in the custody of the Walton County Sheriff, including exhibit #B1, 13, B2i, B2, 10, 11, and 12. (See Order Permitting DNA Testing at Appendix C and D). The order further provides that The DNA testing shall be conducted by the Florida Department of Law Enforcement (FDLE). (See Appendix C at page 2). In granting the State s motion to conduct DNA testing, the lower court denied Mr. Whitton s Emergency Motion to Prohibit Proposed DNA Testing, and Motion for Protective Order and Order Requiring Notice. (See Motion to Prohibit Proposed DNA Testing at Appendix E). 2. On September 24, 2002, Judge Bell orally denied Mr. Whitton s Demand for Disclosure. (See Demand at Appendix G and denial thereof at Appendix B at pages 17-19). The Demand for Disclosure was necessitated by Judge Bell s order denying Mr. Whitton s Emergency Motion to Prohibit Proposed DNA Testing 4

5 and Motion for Protective Order and Order Requiring Notice. Thus, 1 written order dated September 17, 2002 as amended October 2, 2002(See Appendix C and D) and the oral order (See Appendix B at pages 17-19) are the non final orders being appealed and subject of the instant petition. PROCEDURAL HISTORY 1. Mr. Whitton was tried and convicted of the first degree murder and robbery of James Stallings Mauldin in Walton County on August 1, The State s theory at trial was that Mr. Whitton, a friend of Mr. Mauldin, took an intoxicated Mr. Mauldin to a bank, helped him withdraw money, dropped him off at a motel, and then returned with the intent to rob Mr. Mauldin and committed first degree premeditated murder. The State also relied upon the felony murder theory. 2. Mr. Whitton was found guilty and thereafter sentenced to death by the Honorable Laura J. Melvin on September 10, 1992, after an 8-4 jury recommendation. Mr. Whitton timely filed his direct appeal in this Court which affirmed the convictions and death sentence. Whitton v. State, 649 So. 2d 861 (Fla. 1994). Certiorari to the United States Supreme Court was sought and denied. Whitton v. Florida, 116 S. Ct. 106 (1995). On March 24, 1997, Mr. 5

6 Whitton timely filed his initial but incomplete post conviction motion pursuant to Florida Rule Criminal Procedure 3.850/ After public records litigation (and various reassignment of judges), the circuit court set the filing date for Mr. Whitton s amended post conviction motion for August 17, Mr. Whitton filed his amendment on that date, and amended and supplemented his motion thereafter. 3. On May 13, 2002, the circuit court held a hearing pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993). The lower court ordered that an evidentiary hearing was to be held on several claims and scheduled the hearing for September 23-24, On June 21, 2002, during a status conference in the instant case, the State announced that it intended to conduct DNA testing on evidence in Mr. Whitton s case. 3 (See Appendix F at page 7, (... we are exploring the possibilities of using new and advanced DNA techniques to reexamine the boots.... Also, this Bob Hersey was an expert in the field of hair samples. FDLE does not any longer do that. But we were going to see if there are, in fact, hair samples that we can 3 This is despite the fact that Mr. Whitton filed his post conviction motion nearly a year earlier on August 17, Mr. Whitton s subsequent amendments and supplements did not deal with the issues regarding the evidence the State belatedly announced it was going to test. 6

7 now try DNA on those hair samples. These are things that we re exploring. )). 4 Mr. Whitton filed an Emergency Motion to Prohibit Proposed DNA Testing and Motion for Protective Order and Order Requiring Notice on July 9, In this motion, counsel informed the court that the State had not made any motion to request DNA testing. Because the State failed to file a motion, Mr. Whitton did not know specifically what evidence the State intended to test (beyond the boots and hair), the method of DNA testing the State intended to employ, who would conduct such testing, nor when or where such testing would occur, nor upon what legal authority the state relied, nor what reasons the State based its decision to retest the evidence. Mr. Whitton additionally asserted that if the State was allowed to proceed with such testing, Mr. Whitton should be entitled to have a representative present at all phases of the testing to ensure that proper procedures are followed and to document the evidence. He also requested that he be given advance notice of all testing. The earliest Judge Bell could 4 The State also attempted to have another lab retest the boots during the original investigation but was unsuccessful. Regarding hair samples, no evidence was presented by either party. Undersigned counsel has discovered that FDLE did conduct analysis at the time of trial of hair found in the victim s hand. That hair was not consistent with Mr. Whitton s. The State now desires to fish for new evidence of guilt through techniques not available at the time of trial. 7

8 hear the motion was August 22, In response to the State s continued expressions to go forward with testing, Mr. Whitton requested that Judge Bell enter a Temporary Injunction, enjoining the State from proceeding with any testing of evidence, including items entered into evidence at Mr. Whitton s 1992 trial and evidence collected in the case but not used at trial and currently in the possession of the State as well. 5. On July 9, 2002, the State filed its Motion to permit DNA testing, and corrected said motion on October 2, (See Appendix J and K). In that motion, the State requested to conduct DNA testing of several items. 6. In response to Judge Bell s inability to promptly address the Motion for Temporary Injunctive Relief, Mr. Whitton sought relief from this Court by way of his Emergency Petition for Writ of Mandamus and to Invoke this Court s Extraordinary Jurisdiction to Issue all Writs Necessary to Complete Exercise of its Jurisdiction filed on July 26, 2002, amended on July 26, and Supplemented on July 31, The supplement was due to Judge Bell s subsequent partial order of temporary injunctive relief, preventing the State from testing only that evidence which was introduced at trial, and allowing the State to proceed with testing of evidence not used at 8

9 trial. (See Appendix I). This Court denied Mr. Whitton s Emergency Petition on August 7, On September 17, 2002, the circuit court entered an order vacating the temporary injunction and granting permission to the State to conduct DNA testing. The order provides that all [t]he DNA testing shall be conducted by the Florida Department of Law Enforcement (FDLE) and that an investigator with the State Attorney s Office shall transport the evidence to and from FDLE and amended said order on October 2, (See Appendix C). Mr. Whitton filed a Notice of Appeal in the circuit court on September 23, (See Appendix M) and a Motion to Stay the Proceedings Pending Appeal under Fla. R. App. P (a). The motion for stay was denied by the circuit court on September 24, Thereafter, Mr. Whitton filed his Demand for Disclosure, requesting that the State be required to disclose information regarding the testing the State intended to utilize. (See Appendix G). The circuit court orally denied this motion on September 24, (See Appendix B at 17-19), Transcript of Motions hearing held September 24, 2002). 8. On September 30, 2002, Mr. Whitton filed in this Court his Motion to Stay the lower court proceedings during the pendency of Mr. Whitton s appeal. On November 8, this 9

10 Court entered an Order directing counsel for Mr. Whitton to file the instant Petition which conforms with new rule (B), Florida Rules of Appellate procedure. See Amendments to Florida Rule of Appellate Procedure, (Rule 9.142), 2002 WL (Fla.). On November 5, 2002, this Court entered an Order directing undersigned counsel to file with the Court executed copies of the order(s) to be reviewed. On November 13, 2002, Mr. Whitton filed his Notice to Court and Notice of Filing Regarding Motion to Stay Proceedings. On November 21, 2002, Mr. Whitton filed a Motion to Toll Time and to extend the filing date of his Petition due to the fact that a necessary transcript of lower court proceedings had not yet been transcribed. 5 On November 26, 2002 this Court denied the motion to toll and to extend the filing date and ordered the instant Petition be filed on December 6, Accordingly, Mr. Whitton hereby timely files his Petition. Facts 1. At trial, the State asserted that blood from Mr. Whitton s boots (which the State argued Mr. Whitton wore during the murder) was type A and vigorously argued that 5 Subsequently undersigned counsel was able to procure a copy of the necessary transcript. 10

11 this blood was Mr. Mauldin s. 6 However, during the original investigation, FDLE had conducted DNA analysis on the boots which proved that the blood was not consistent with Mr. Mauldin s. Defense counsel presented this evidence at trial. Mr. Whitton has alleged ineffective assistance of counsel, Brady and Giglio claims in his post conviction motion regarding the presentation of the DNA evidence from the boots. (See Appendix H). He has been granted an evidentiary hearing on those claims. At trial, the State attempted to discredit the DNA evidence and argued that regardless of the DNA testing showing the contrary, the blood was Mr. Mauldin s. No hair evidence was presented by either party at trial. Mr. Whitton has asserted in his post conviction motion that trial counsel was ineffective for failing to utilize the hair evidence and FDLE analysis of it. He has been granted an evidentiary hearing on this claim. This evidence reveals that at the time of trial, FDLE also analyzed hair that was found clutched in the victim s hand and determined that the hair was not consistent with Mr. Whitton s. Mr. Whitton never confessed and there was no other direct evidence to inculpate Mr. Whitton. 6 Mr. Mauldin s blood type was A ; Mr. Whitton s blood type is O. 11

12 2. On June 21, 2002, during a status conference held in Mr. Whitton s case, the State asserted that it may have evidence from Mr. Whitton s capital trial and investigation submitted for analysis, testing - retesting and/or examination, using updated DNA technology. (See Appendix F at page 7; Transcript of June 21, 2002 proceedings). The State Attorney stated that he was particularly interested in retesting a pair of boots obtained from Mr. Whitton and possibly hair evidence. At that time, the State did not announce what further evidence it would seek to have tested, the method of DNA testing the State planned to employ, who would conduct such testing, nor when or where such testing would occur; nor did the State assert what legal authority it relied upon to propose testing/retesting the evidence, nor what reasons the State based its decisions to test and/or retest evidence from Counsel for Mr. Whitton argued that the State should be precluded from such testing as it is irrelevant and that if such testing was allowed, safeguards should be imposed. 3. Mr. Whitton filed his Emergency Motion to Prohibit Proposed DNA Testing and Motion for Protective Order and Order Requiring Notice. (See Appendix E). In this Motion, Mr. Whitton asserted that the State had not made any motion to request DNA testing. Because the State failed to file a 12

13 motion, Mr. Whitton did not know specifically what evidence the State intended to test (beyond the boots and hair), the method of DNA testing the State intended to employ, who would conduct such testing, nor when or where such testing would occur, nor upon what legal authority the State relied, nor what reasons the State based its decision to retest the evidence. Mr. Whitton additionally asserted that if the State proceeded with such testing, Mr. Whitton should be entitled to have a representative present at all phases of the testing to ensure that proper procedures were followed. He also requested that he be given advance notice of all testing. 4. Judge Bell was not able to hear the motion until August 22, Since the State asserted that it was going to proceed with testing (despite undersigned counsel s request for them to wait) Mr. Whitton filed his Emergency Motion for Temporary Injunction. (See Appendix L). Such action was necessary in order to prevent irreparable harm to Mr. Whitton. Judge Bell was not able to timely address the Emergency Motion so Mr. Whitton sought relief from this Court by filing an Emergency Petition for Writ of Mandamus. 5. Subsequently, Judge Bell entered an Order permitting the State to test evidence in the possession of the State but which was not entered into evidence. The State was 13

14 temporarily enjoined from testing evidence that had been introduced into evidence. (See Appendix I). 6. Judge Bell entered his Order Permitting DNA Testing. (See Appendix C and D) which denied Mr. Whitton s Motion to Preclude Testing. 7. Mr. Whitton then filed his Demand for Disclosure (See Appendix G) regarding DNA testing requesting that the State should at least be required to disclose typical discovery type information regarding the who, what, when and where regarding the testing. The lower court denied Mr. Whitton s Demand for Disclosure on September 24, (See Appendix B at pages 17-19). This appeal follows. 14

15 ARGUMENT THE ORDERS OF THE LOWER COURT PERMITTING THE STATE TO CONDUCT UNFETTERED DNA TESTING ON EVIDENCE IN MR. WHITTON S CASE (IN AN ATTEMPT TO FIND NEWLY DISCOVERED EVIDENCE OF GUILT) AND ORDERS DENYING MR. WHITTON S EMERGENCY MOTION TO PROHIBIT PROPOSED DNA TESTING AND MOTION FOR PROTECTIVE ORDER AND ORDER REQUIRING NOTICE, AND DEMAND FOR DISCLOSURE VIOLATE MR. WHITTON S RIGHT TO DUE PROCESS OF LAW, RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND RIGHT TO JURY TRIAL UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND VIOLATE THE SPIRIT OF SECTION , FLORIDA STATUTES(DNA STATUTE)AND CORRESPONDING PROCEDURAL RULES. THE LOWER COURT ABUSED ITS DISCRETION IN ENTERING THESE ORDERS. A. Order Permitting State to Conduct DNA testing and Order Denying Emergency Motion to Prohibit Proposed DNA Testing and Motion for Protective Order and Order Requiring Notice. 1. The State has given no reason why it intends to conduct DNA testing (other than to conduct a fishing expedition for newly discovered evidence of guilt), why it no longer desires to rely solely on the evidence presented at trial, and what possible errors may be connected to the testing and evidence from trial. 7 The State merely filed a motion stating what evidence it desired to test and stated 7 The prosecutor has a constitutional duty to learn of evidence that is favorable to Mr. Whitton and disclose it. This includes discovering and disclosing evidence that undermines the reliability of the original investigation and those who conducted it. See Kyles v. Whitley, 514 U.S. 419 (1995); Strickler v. Greene, 527 U.S. 263 (1999); Rogers v. State, 782 So. 2d 373 (Fla. 2001); Hoffman v. State, 800 So. 2d 174 (Fla. 2001). 15

16 that new techniques could lead to other valuable evidence. (See Appendix J and K). 2. First, the State should be required to show cause, just as a defendant must under the dictates of section Fla. Stat. (hereinafter referred to as DNA statute ). The DNA statute took effect October 1, 2001, and outlines the procedures a defendant must follow if he is to request DNA testing of evidence in post-conviction proceedings. However, in Mr. Whitton s case, the circuit court found that the State was not required to follow the procedure outlined in section and that the procedures in the statue only apply to the defendant and not to the State. The circuit court found that the State is not subject to the same requirements as the defense and that the State can get a second chance to produce evidence of guilt against Mr. Whitton - evidence that was never presented at trial - and evidence that the State presumably intends on utilizing without ever subjecting to the crucible of a trial. Such a procedure, compounded with the circuit court s refusal to compel discovery regarding these matters, violates due process, Mr. Whitton s right to effective assistance of counsel, right to a jury trial, and violates the spirit of this State s DNA statute and corresponding procedural rules. 16

17 3. Consequently, the circuit court gave the State unfettered ability to conduct DNA testing in Mr. Whitton s case even though there is a conviction and sentence of death in place. Florida procedural rules establish that a capital defendant s request for DNA testing be made in a specific motion with specific assertions. Fla. R. Crim.P confers to the defendant the ability to request DNA testing in his case. However, the defendant cannot make a request for DNA testing lightly; his motion must be made under oath and detail the following: 1. a statement of the facts relied on in support of the motion including a description of the physical evidence containing DNA evidence to be tested and, if known, the present location of 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 or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the 17

18 movant receded; 5. a statement of any other facts relevant to the motion, and; 6. a certificate that a copy of the petition has been served on the prosecuting authority. Rule 3.853, Fla. R. Crim.P. The State has not complied with these requirements. 4. The State should not be able to choose which portions of the statute and rules of procedure to follow and which portions to ignore. The statute confers the right to request DNA testing on the defendant who has the burden of proof in post conviction matters. To be granted an opportunity for DNA testing, he must make a showing that there is something wrong with the original testing that was done at the time of trial. Yet, here, when the State requests testing, it is not required to make any showing of why its testing at the time of trial is unreliable. As discussed below, Mr. Whitton requested that, at a minimum, the State provide notice of the details of its proposed testing and that the State formally move to conduct such testing. Permitting the State to conduct testing without providing any of this information, or having to meet the same requirements that a capital defendant must meet, results in not only the appearance of inequality but the actual effect of inequality 18

19 as well. Such a result should be prohibited. 5. Section provides the procedure to be followed when post-sentencing DNA testing is conducted. However according to the circuit court, the State is exempt from these requirements The DNA testing that the State has announced does not comport with basic due process. Since the situation presented herein is unprecedented (a state attorney reopening an investigation into a criminal case while the conviction remains undisturbed and the defendant remains sentenced to 8 The circuit court denied Mr. Whitton s requests to have protective measures implemented to ensure that the evidence is protected from contamination and that proper procedures are followed. For instance, Mr. Whitton requested the court to require certain safeguards, such as documenting and photographing the condition of the evidence prior to testing to determine if the evidence has become contaminated, deteriorated, or altered in the twelve years since the evidence was collected. Additionally, Mr. Whitton requested to have a representative present to ensure that basic lab procedures are followed (such as the examiner wearing different gloves when handling different biological matter and the examiner photographing the extraction process and the digestion of DNA) and to ensure proper and accurate testing and analysis procedures. Mr. Whitton requested the opportunity to have a representative observe and record the examiner s statistical interpretations for errors in the data base functions as well as document the use of manual overrides related to the STR markers in PCR testing. (While some of these concerns may be specific to a particular type of DNA test, Mr. Whitton has not been informed what tests the State plans to employ (see Appendix E. The lower court denied Mr. Whitton s request that the State be required to disclose this information. 19

20 death), an analogy may best illustrate Mr. Whitton s argument. If the Sheriff s Office were to arrest someone tonight, do DNA testing tomorrow and determine the arrestee is guilty and warrants a death sentence, the arrestee could not be convicted and sentenced to death without submitting the evidence and the case to the crucible of an adversarial testing. See Strickland, 466 U.S. 668, 685 (1984)( [A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. ) However, Mr. Whitton is faced with unilateral determination of his guilt or innocence by the State. If the entire sample is consumed by the State, there can be no due process, no adversarial testing, and no representation for Mr. Whitton, because his counsel has been completely shut out of the process. 7. This unilateral testing is inconsistent with the obligation imposed upon a law enforcement agency to maintain any physical evidence collected at the time of the crime. See , Fla. Stat. (2001). 8. Mr. Whitton requests the same due process be afforded to him as it is to the State. Mr. Whitton should either be permitted to participate in the selection of the DNA examiner, have a DNA examiner of his own choosing, witness the 20

21 procedure, or conduct his own testing. However, the State has decided that the only portion of the statute it does want to follow is the provision that the testing shall be done by FDLE, yet FDLE does not have the current capability to do mitochondrial DNA testing. Moreover, Mr. Whitton is concerned that the little evidence that remains in the case will be destroyed by the State s testing, leaving nothing for Mr. Whitton to have independently tested Although Rule does not expressly apply to the State, there are still guidelines and standards the State must meet before performing and utilizing DNA tests in post conviction. For instance, the State must still meet the discovery burdens established by Lewis v. State, 656 So. 2d 1248 (Fla. 1994). In his motion to prohibit such testing, Mr. Whitton asserted that in Rule proceedings, this Court has authorized pre-hearing discovery : On a motion which sets forth good reason, however, the court may allow limited discovery into matters which are relevant and material... 9 Mr. Whitton requested to have the quantity of the DNA sample analyzed prior to any testing to determine whether future DNA testing is possible, what testing will be done, what will be done to preserve the evidence, whether additional testing is possible, whether additional testing has a probability of destroying the evidence or using the entire amount of evidence See Appendix E. 21

22 . State v. Lewis, 656 So. 2d 1248, 1250 (Fla. 1994)(quoting the language from Davis v. State, 624 So. 2d 282, 284 (Fla. 3d DCA 1993))(emphasis added). However 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). Here, the State has failed to meet this showing. Instead, the state merely seeks to conduct new DNA testing in hopes of finding new evidence of guilt. Such evidence is irrelevant to the claims asserted by Mr. Whitton in post conviction. Mr. Whitton has asserted that he was denied a fair trial due to the ineffective assistance of counsel, as well as Brady and Giglio violations. In assessing these claims, the relevant inquiry centers around the evidence available at trial and the actions of the state attorney and trial counsel regarding that evidence given the information they possessed at that time. Assuming arguendo, the State conducted DNA testing with a new technique, not available at the time of Mr. Whitton s trial, and developed inculpatory evidence as a result, that evidence should not be considered in order to defeat a claim of ineffective assistance of counsel or the Brady-Giglio claims. 10. The predecessor provision to Rule was adopted to "facilitate and expedite the handling of post-conviction 22

23 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 In State v. Matera, 266 So.2d 661, 665 (Fla. 1972) (italics in original), this Court undertook to address the proper procedure adopted in Rule There, this Court 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 innocence. Rule may be used to challenge the constitutional adequacy of the trial. 12. Accordingly, a criminal defendant filing a Rule motion must file cognizable claims that undermine confidence in the constitutional adequacy of the trial. Where 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 23

24 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 is also entitled effective representation. 13. Thus, 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 legally cognizable challenge to the validity and reliability of the trial. Richardson v. State, 546 So.2d 1037 (Fla. 1989). 14. 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 this trial and convince the judge that, when the new facts pled are evaluated against "the evidence which was introduced at the trial," it is 24

25 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. 15. Newly discovered evidence is irrelevant to these claims and serves only to attempt to convict Mr. Whitton on evidence that has not been subjected to the crucible and protections of a jury trial. Allowing such a procedure violates Mr. Whitton s constitutional right to due process of law, his right to effective assistance of counsel, and his right to a jury trial and should not be permitted here. 16. Subsequent to Lewis, this Court specifically found that in order to be able 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. See Zeigler v. State, 654 So. 2d 1162 (1995). Moreover, the law of this State is that procedural default rules apply equally 25

26 to the State. See Cannady v. State, 620 So. 2d 165, 170 (Fla. 1993). Here the State announced that it desired to conduct DNA testing on June 21, This is despite the fact that Mr. Whitton filed his post conviction motion raising the issues surrounding the evidence in question here, nearly 1 year prior. Likewise, the State announced its decision to conduct further DNA testing after it filed its response to Mr. Whitton s motion. Thus, the State was on notice regarding the issues asserted in Mr. Whitton s motion and could, and should have sought to test the evidence long ago. The evidentiary hearing was continued in part because the State sought to conduct DNA testing at the last moment. B. Order Denying Demand for Disclosure 1. As a result of the lower court s order permitting the State to conduct DNA testing, Mr. Whitton filed a Demand for Disclosure and requested that the State be required to make certain disclosures to Mr. Whitton regarding the DNA testing it planned upon doing. Specifically, Mr. Whitton requested that the State disclose to his counsel any and all information regarding any DNA testing (or testing for similar purposes) in which the State has engaged or is presently engaging, or testing in which the State is preparing or has prepared to engage. Mr. Whitton requests information 26

27 regarding when any testing has occurred, who has conducted such testing, which particular tests were performed, what specific items were tested, and where the testing took place. Mr. Whitton further requests disclosure of any and all results of the testing, including but not limited to data or reports compiled during or subsequent to the testing. See Appendix G at 1-2). Thus, Mr. Whitton was essentially asking that the State be required to disclose the who, what, when, and where type of information regarding the proposed DNA testingtypical discovery to which he is entitled. The lower court has denied him this right. If the lower court s orders are to stand, Mr. Whitton will be deprived of his right to due process, effective assistance of counsel, and a full and fair evidentiary hearing. 2. The following transpired regarding Mr. Whitton s Demand for Disclosure: [THE COURT]: Well, I think the State understands they have to disclose the results of the testing. [THE STATE]: Your Honor, we certainly are going to disclose, no matter what it is, the results of the testing. I interpreted the motion for the Court was to impose standards or something on FDLE, perhaps our methods or allowing the CCRC to be present and all types of stuff. 27

28 [THE COURT]: I m not doing that. I m just going to require you to disclose the results of the. [THE STATE]: Certainly, Your Honor. [POST CONVICTION COUNSEL]: Yes, Your Honor, what we are asking for is to know what type of testing and when and where it would occur, that type of discovery information, not just merely the results. * * * [POST CONVICTION COUNSEL]: We wanted the information as to what kind of tests, you know, so we can determine whether evidence will be consumed totally, those type of issues. [THE COURT]: Well, again, the State can run their tests, provide the results and I ll cross the other bridge if we get there. The results may not provide anything different than we already know. [THE STATE]: Your Honor, the position that we have taken all along is that FDLE, of course, will use its normal procedures to do what ever it can. It becomes then an issue of admissibility, relevancy and any other issue as to whether or not the court will consider it into evidence, But as far as the testing procedures, FDLE will be permitted to do those procedures and then they will be examined afterwards. [THE COURT]: Right [POST CONVICTION COUNSEL]: I m just trying to get the information so that we know the how, what, when type questions regarding, and issues regarding the DNA. Although you did not 28

29 order us that we would have to be present, it is our desire to be present when that s going on because we felt that we ve got evidence here of a very limited quantity and we would like to have an expert present if possible. I realize your order saying you re not going to order us to be there, but we re asking for the information so we can be informed as to what is actually happening with this evidence, especially since we re in post-conviction as opposed to trial since the burden is on us at the post-conviction hearing to show that Mr. Whitton was given an unfair trial. [THE COURT]: Okay. I m just going to allow the FDLE to follow the protocol that s been set up and accepted by, as I understand it, all the experts on the defendant and the State s side on these issues and I m not going to require any additional information at this point. So other than it relates to providing the results of the testing, I m going to deny that motion at this point. (See Appendix B at pages 17-19)(emphasis added). 3. The lower court merely allows Mr. Whitton access only to the final results of the testing after the testing has occurred. Thus, Mr. Whitton is totally deprived of an opportunity to observe the testing. Such observation is necessary in order to properly respond to any of the results and mount a defense if necessary. Consequently, Mr. Whitton is being denied his right to effective representation. Additionally, there is a strong likelihood that all of the 29

30 evidence will be consumed by said testing. Thus not only will Mr. Whitton be deprived of the opportunity to assess the actual evidence, but because of the lower court s rulings, he will not even be able to observe and document the testing that will likely consume all of the evidence precluding him from being able to respond to it at all. Such a result and procedure should not be allowed and violates basic due process of law, Mr. Whitton s right to effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and corresponding Florida law. NATURE OF RELIEF SOUGHT 1. Under section (3)(a), Fla. Stat.(2001), Mr. Whitton has a right to appeal this circuit court s decision with regard to DNA testing, because to do otherwise would result in irreparable harm in the destruction of DNA samples tested by the State. Mr. Whitton has exercised that right by filing a notice of appeal and this Petition. Accordingly, a stay of the lower court proceedings by this Court is necessary to ensure that Mr. Whitton s due process rights are protected in this critical matter that very well could be the difference between life or death. 2. Thereafter, in considering this appeal, this Court should reverse and vacate the orders of the lower court 30

31 permitting the state to conduct DNA testing of the evidence in Mr. Whitton s case. This Court should also reverse and vacate the orders of the lower court denying Mr. Whitton s Motion to Prohibit DNA testing, and for Notice. 3. In the alternative, this Court should reverse and vacate the lower court s denial of Mr. Whitton s Demand for Disclosure and Remand accordingly. WHEREFORE, for the forgoing reasons, Mr. Whitton respectfully requests that this Court grant a Stay of his post conviction proceedings in the circuit court pending the instant interlocutory appeal in this Court and thereafter requests this Court reverse the circuit court orders and Remand accordingly. CERTIFICATE OF FONT SIZE I HEREBY CERTIFY that a true copy of the foregoing Petition has been furnished by United States Mail, first class postage prepaid to all counsel of record and the Honorable Kenneth L. Bell, circuit court judge, on December 6, MICHAEL REITER Florida Bar No Capital Collateral Counsel- Northern Region HEIDI E. BREWER Florida Bar No Assistant Capital Collateral 31

32 Counsel-Northern Region 1533 S. Monroe Street Tallahassee, Florida Attorney for Mr. Whitton Copies Furnished To: The Honorable Kenneth L. Bell Circuit Court Judge Judicial Building 190 Governmental Center Pensacola, Florida John Spencer, Assistant State Attorney Office of the State Attorney 190 Governmental Center Pensacola, Florida Charmaine Millsaps Assistant Attorney General Office of the Attorney General The Capitol Tallahassee, Florida IN THE SUPREME COURT OF FLORIDA GARY RICHARD WHITTON, Appellant, v. CASE NO. SC STATE OF FLORIDA, Appellee, Lower Tribunal Case No CF (Walton County) /

33 PETITION SEEKING REVIEW OF NON-FINAL ORDER IN DEATH PENALTY POST CONVICTION PROCEEDINGS AND MOTION FOR STAY OF PROCEEDINGS MICHAEL REITER Florida Bar No Capital Collateral Counsel- Northern Region HEIDI E. BREWER Florida Bar No Assistant CCRC-N Office of the Capital Collateral Regional Counsel - North 1533-B South Monroe Street Tallahassee, FL (850) Attorney for Mr. Whitton 33