IN THE SUPREME COURT OF FLORIDA MARK VINCENT OLVERA, Petitioner, v. CASE NO. SC03-3803 STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL CARMEN F. CORRENTE ASSISTANT ATTORNEY GENERAL Florida Bar #304565 444 Seabreeze Boulevard Daytona Beach, FL 32118 FAX (386) 238-4997
(386) 238-4990 COUNSEL FOR RESPONDENT TABLE OF CONTENTS TABLE OF AUTHORITIES... ii CERTIFICATE OF COMPLIANCE...11 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT: THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER FLORIDA COURT.... 3 CONCLUSION... 9 CERTIFICATE OF SERVICE...10 i
TABLE OF AUTHORITIES CASES: Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)... 8 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 7 Amendments to Fla. Rules of Crim. Procedure Creating Rule 3.853, 807 So. 2d 633 (Fla. 2001)... 5 Hitchcock v. State, 866 So. 2d 23 (Fla. 2004)... 4,5 Huffman v. State, 837 So.2d 1147 (Fla. 2d DCA 2003)... 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3 Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002)... 6,7 OTHER AUTHORITY: Article V, Section (3)(b)(3), Florida Constitution... 3 Florida Rule of Criminal Procedure 3.853... 1, 5, 6 ii
STATEMENT OF THE CASE AND FACTS The record below reflects that Petitioner has twice filed a motion for post-sentencing DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. In his first motion he alleged that the vaginal swab test results were inconclusive, and that samples may have been switched. (Appendix B, page 3, Answer Brief 5D03-3803) The denial held that the testing was conclusive and the ruling was upheld on appeal. A second motion was filed claiming that DNA testing had improved and that the evidence should be retested. The trial court entered an order denying the motion, stating: that the DNA testing performed in this case was in no way inconclusive, but rather definitely identified the defendant as the perpetrator.... In essence, the Defendant s argument is that the state of the science of DNA testing has improved, therefore, he should be entitled to re-testing. This would be so if the original DNA testing was inconclusive. It was not. (Appendix E, page 2, Answer Brief 5D03-3803, emphasis supplied) Moreover, the second motion was found legally insufficient because the trial court and appellate court had already found the vaginal testing was not inconclusive. As to the previously untested hair samples, even if they did not match Petitioner he would not be exonerated because his DNA was found in the victim s vagina. 1
On appeal the Fifth District Court issued a seven page opinion outlining its findings in detail and affirming the ruling below. (Appendix A) Petitioner now seeks discretionary review in this Court based upon an alleged conflict with four cases. 2
SUMMARY OF ARGUMENT This court should decline to accept jurisdiction in this case. The decision of the Fifth District Court of Appeal does not expressly and directly conflict with a decision of this Court or any other Florida court. ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER FLORIDA COURT. This Court has jurisdiction under Article V, Section (3)(b)(3) of the Florida Constitution only where a decision of a district court "expressly and directly conflicts" with a decision of this Court or another district court. This Court has repeatedly held that such conflict must be express and direct, that is, "it must appear within the four corners of the majority decision." Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). The "four corners" of the opinion in this case consist of seven pages detailing extensive factual and legal findings. The factual findings include proof that Petitioner attempted to dance and talk with the victim in a bar on the night of her rape and murder. Eyewitness testimony indicated that the victim left the bar with Petitioner. Forensic evidence showed that the semen retrieved from the victim s vagina contained Petitioner s DNA, and hairs found in the car he was driving were indistinguishable from the victim s. (A 1-2) 3
DNA testing was done on at least four persons. The State s main expert testified that Petitioner had sexual relations with the victim before she was murdered. The State called a second expert who determined that samples had not been switched with someone else s samples in the laboratory, a theory suggested by Petitioner. This second expert also testified that Petitioner s semen was found in the victim s vagina. (A 4) A defense expert challenged the representative sample used to calculate the odds that another Hispanic could have committed the crime, but this defense expert also agreed that the DNA found in the victim s vagina appeared to match that of Petitioner. (Id.) The Fifth District found that, unlike most others seeking DNA testing, Petitioner s original trial was centered on DNA evidence. (A 6) The Court further found that although Petitioner focuses on the testing of hair samples, the trial court explained, in denying the second motion, that no matter what the outcome of any test of the hair samples, the fact remains that DNA testing has shown that [Petitioner s] semen was found in the victim s vagina. (Id.) Thus, the Court concluded, Petitioner must seek to re-test the vaginal swab which was conclusively proven through DNA testing to contain his DNA. However, the appellate court found that the grounds put forth for re-testing the vaginal swab were legally insufficient. All three experts testified that Petitioner s DNA was found on the vaginal swab. 4
The four cases cited in Petitioner s brief do not establish conflict. In Hitchcock v. State, 866 So. 2d 23, 27-28 (Fla. 2004) this Court held that Florida Rule of Criminal Procedure 3.853 was not intended to be a fishing expedition. Rather, it is intended to provide a defendant with an opportunity for DNA testing of material not previously tested or of previously tested material when the results of previous DNA testing were inconclusive and subsequent developments in DNA testing techniques would likely provide a definitive result. Neither prerequisite has occurred in this case. The vaginal swab was previously tested; and said test has been ruled to be conclusive by the trial and appellate courts. Essentially, Petitioner already has one DNA test which conclusively proves he raped and strangled the victim. Therefore, he has nothing to lose in attempting to obtain a second test. This reasoning flies in the face of this Court s written policy that the rule cannot be used as a fishing expedition. And it would lead to an absurd result: all cases where a defendant is convicted based upon conclusive DNA testing will be subject to re-testing. Because the request in this case is clearly a fishing expedition, there is no conflict with Hitchcock. Petitioner also claims that the opinion below is in conflict with the rule as it is discussed in Amendment to Fla. Rules of Crim. Procedure Creating Rule 3.853 (DNA Testing), 807 So. 2d 633, 636 (Fla. 2001). However, Florida Rule of Criminal 5
Procedure 3.853 and the discussion in the Amendment opinion require either a situation where the evidence was not tested, or where the testing was inconclusive and there is a credible concern that an injustice may have occurred and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result. Here, of course, a definitive result already exists. There is no conflict with the rule or this Court s adoption of the rule. The fact that a definitive result is already extant militates against further testing. Should further DNA testing find that the vaginal swab contains DNA from a person other than the Petitioner or the victim, Petitioner would not be exonerated. Rather, there would either be a conflict in the evidence or the testing would merely corroborate the trial testimony that the victim s boyfriend had sexual intercourse with the victim on the day of the murder. This trial testimony was the basis of Petitioner s first motion for DNA testing where he claimed that the testing must be inconclusive because it did not find DNA from the boyfriend. Thus, a re-testing of the vaginal swab cannot and will not exonerate Petitioner. Petitioner therefore fails under Rule 3.853 to show that the original DNA testing was inconclusive; he has failed to illustrate how further testing would yield a definitive result; and he has completely failed to show how he would be exonerated based upon conflicting DNA findings. 6
The third case alleged to be in conflict with the decision below is Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002) a case in which there was no prior DNA testing and the only identification evidence was provided by the victim. In the pending case, of course, there was conclusive DNA evidence which positively identified Petitioner s semen on the vaginal swab. There was other corroborating evidence, including eyewitness testimony and an injury to Petitioner s hand noticed only after the severe beating and strangulation occurred. The Zollman case is easily distinguishable because there was no DNA testing utilized at the trial. Here, as noted in the Fifth District opinion, the case centered on DNA evidence. Finally, Petitioner argues that the decision in Huffman v. State, 837 So.2d 1147 (Fla. 2d DCA 2003) conflicts with the opinion below. Again, however, Huffman did not involve DNA evidence at the trial level. It is difficult to imagine a more distinguishable case than one where DNA was actually a feature of the trial and where three experts testified that Petitioner s DNA was conclusively present on the vaginal swab. None of the cases discussed by Petitioner remotely conflict with the scenario found in this case. Plus, this case includes prior res judicata that the DNA testing was not inconclusive. Petitioner s brief on jurisdiction uses language that hair testing could be extremely persuasive and retesting [Petitioner s] DNA could also be helpful in determining issues. (Petitioner s jurisdictional brief at 6-7, emphasis supplied) 7
This language is very descriptive of a fishing expedition, and falls far short of the requisite showing that Petitioner would be exonerated. This Court, in Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983), initially accepted jurisdiction but then discharged jurisdiction because the case was distinguishable on its facts from those cited as being in conflict with it. Similarly, in Jenkins v. State, 385 So. 2d 1356, 1357 (Fla. 1980) this Court quoted from its earlier decision in Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958): We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed...it was never intended that the district courts of appeal should be intermediate courts...to fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy. (emphasis supplied) Given the fact that the Fifth District Court is a court of final appellate jurisdiction and given the very limited and restricted bases for this Court's exercise of its discretionary jurisdiction based upon conflict, it cannot be said that Petitioner has established any good cause for the exercise 8
of that jurisdiction. The facts of the conflict cases are inapposite. There is no express or even implied conflict. 9
CONCLUSION Based on the argument and authorities presented herein, Respondent requests this Honorable Court to decline jurisdiction in this cause. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL CARMEN F. CORRENTE ASSISTANT ATTORNEY GENERAL Fla. Bar #304565, and KELLIE A. NIELAN Assistant Attorney General FL Bar No. 618550 444 Seabreeze Blvd 5th Floor Daytona Beach, FL 32118 FAX: (386) 238-4997 (386) 238-4990 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing Respondent's brief on jurisdiction in case number SC04-893 has been furnished U.S. Mail to Lockett & Blair, P.A., P.O. Box 130, Tavares, FL 32778 this day of July, 2004. CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that this brief was typed using 12 point Courier New, a font that is not proportionately spaced. CARMEN F. CORRENTE ASSISTANT ATTORNEY GENERAL 11