IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA BRETT A. BOGLE, Petitioner, vs. CASE NO. SC01-1701 Lower Court No. 91-12952 Division II STATE OF FLORIDA, Respondent. / ON APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA RESPONSE TO PETITION ROBERT A. BUTTERWORTH ATTORNEY GENERAL CANDANCE M. SABELLA Sr. Assistant Attorney General Florida Bar No. 0445071 Westwood Center 2002 North Lois Avenue, Suite 700 Tampa, Florida 33607-2366 Phone (813) 801-0600 Fax (813) 356-1292 COUNSEL FOR RESPONDENT

JURISDICTIONAL STATEMENT The State agrees that in Trepal v. State, 754 So. 2d 702 (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 made it clear, however, that to obtain relief an appellant must establish that the lower court s order compelling discovery does not conform to the essential requirements of law and may cause irreparable injury for which appellate review will be inadequate. Trepal v. State, 754 So. 2d at 707. As the following will establish, Bogle can make neither showing and, therefore, the petition should be denied and the stay of proceedings lifted. ISSUE PRESENTED WHETHER BOGLE HAS ESTABLISHED THAT THE LOWER COURT S ORDER COMPELLING DISCOVERY DOES NOT CONFORM TO THE ESSENTIAL REQUIREMENTS OF LAW AND MAY CAUSE IRREPARABLE INJURY FOR WHICH APPELLATE REVIEW WILL BE INADEQUATE. 2

STATEMENT OF CASE AND FACTS Bogle was convicted and sentenced to death on February 15, 1993, for the first degree murder of Margaret Torres. (TT 1649-51) Bogle s judgement and death sentence were affirmed by this Court on February 16, 1995 and rehearing was denied on June 15, 1995. Bogle v. State, 655 So. 2d 1103 (Fla. 1995). In Bogle, this Court set forth the salient facts as follows: The record reflects the following facts regarding this case. Margaret Torres (the victim) was the sister of Katie Alfonso and stayed at Alfonso's house four or five nights a week. In June 1991, Bogle met Alfonso and shortly thereafter he moved in with Alfonso and the victim. Bogle and the victim did not get along and Alfonso eventually asked Bogle to move out. The following week, Bogle, Alfonso, the victim, and another person went out together and things seemed to be going better. During the outing, however, Bogle and the victim began to argue again. Subsequently, Alfonso and the victim refused to allow Bogle into Alfonso's house. Bogle then broke through the screen door of Alfonso's house, grabbed Alfonso's neck to push her out of the way, grabbed the victim's arm to remove the telephone from her hand as she tried to call 911, pulled the telephones out of the kitchen and bedroom, and took clothing from the house. As he left the house, Bogle told the victim that she would not live to tell about it if she called the police and pressed charges. In response to the victim's uncompleted call to 911, a deputy sheriff arrived shortly after Bogle left. The deputy referred the matter to the state attorney's office. Several days later, Bogle called Alfonso and again threatened the victim, stating that, if the victim 3

pressed charges, she would not live to tell about it. About two weeks later, Bogle called Alfonso to ask if he could come over to her house. The victim was out for the evening. When Alfonso told Bogle that he could not come over, he became furious and hung up. Later that night, Bogle and the victim ran into each other at a bar called Club 41. Witnesses saw them talking briefly. Witnesses also noticed that Bogle was clean and had no noticeable injuries of any kind when he arrived at Club 41. The victim left Club 41 at about 1 a.m.; Bogle left approximately five minutes later. About forty-five minutes after that, Bogle approached a car outside Club 41 and asked for a ride. At that time, his forehead was scratched, his clothes were dirty, and his crotch was wet. The next day, the victim's nude and badly beaten body was found outside an establishment located next to Club 41. Her head had been crushed with a piece of cement, and she had died of blows to the head. Additionally, she had semen in her vagina and trauma to her anus consistent with sexual activity that was likely inflicted before death. The DNA extracted from the semen was consistent with Bogle's DNA (12.5% of Caucasian males could have contributed the semen), and a pubic hair found on the crotch area of Bogle's pants matched the victim's. Bogle put on no evidence in his defense. The jury found him guilty of burglary of Alfonso's home with force, retaliation against the victim as a witness to that burglary, and first-degree murder of the victim. 4

Bogle v. State, 655 So. 2d 1103, 1105 (Fla. 1995)(emphasis added). A petition for writ of certiorari was then taken to the United States Supreme Court and was denied. Bogle v. Florida, 516 U.S. 978 (1995). Bogle s initial 3.850 motion was then filed on or about March 14, 1997 after receiving an extension of time from the Florida Supreme Court. An amended 3.850 motion was filed on July 5, 2000 and a third amended motion was served on November 30, 2000. Bogle claims in these motions that he is an innocent man, and that the hair/fiber analysis and DNA testing done by the FBI lab was flawed and is scientifically unreliable. The State filed its Answer to Defendant Bogle s Motion on July 16, 2001, agreeing that an evidentiary hearing is warranted on, among other things, the DNA claim. In light of specific allegations made in defendant Bogle s motions for Post- Conviction Relief concerning DNA testing, the State made an Ore Tenus Motion to the trial court on June 6, 2001, to have blood samples taken from the defendant for DNA testing of evidence in the instant case. This motion was agreed to by the defendant. (Attachment A Status Order). On June 13, 2001, defendant Bogle revisited the granting of the State s Ore Tenus Motion claiming that the State needed to 5

comply with the newly enacted legislation regarding Postsentencing DNA testing. 925.11. Fla. Stat. (2001). See, also, Florida Rules of Criminal Procedure Rule 3.853 (Motion for Postconviction DNA Testing.) The trial court found that the State does not have to comply with Florida Statute 925.11 to test evidence for DNA. (Attachment A). The trial court s order gave the State 30 days in which to take defendant Bogle s blood. (Attachment A). On June 21, 2001, Bogle filed a Notice of Appeal from the lower court s Order on DNA testing. (Attachment B). The State filed a response to the Motion for Stay and moved to dismiss the interlocutory appeal as improperly filed. On July 16, 2001, the trial court granted the State s Motion for a 15-day continuance to take the defendant s blood by August 2, 2001 (Attachment C) and Bogle sought a Stay of Proceedings from this Court. On July 27, 2001, this Court granted the requested Stay and requested a response to the State s Motion to Dismiss from Bogle. After Bogle responded and filed a Petition as required by Trepal, the State filed a reply noting that while the original Motion to Dismiss was well taken, Bogle s subsequent compliance with Trepal no longer mandated dismissal of the action. This Court then issued an Order to Respond. 6

ARGUMENT IN OPPOSITION TO PETITION WHETHER BOGLE HAS ESTABLISHED THAT THE LOWER COURT S ORDER COMPELLING DISCOVERY DOES NOT CONFORM TO THE ESSENTIAL REQUIREMENTS OF LAW AND MAY CAUSE IRREPARABLE INJURY FOR WHICH APPELLATE REVIEW WILL BE INADEQUATE. In this petition Bogle extensively discusses the issues pending before the circuit court in his motion for postconviction relief. 1 His complaints about trial issues, notwithstanding, the crux of the petition is that the trial court abused its discretion by compelling him to provide a blood sample and by holding that the State is not bound by the newly enacted 925.11 Fla. Stat. (2001). Accordingly, Bogle is asking this Court to block the State from resubmitting evidence previously submitted to the F.B.I. for DNA testing and from obtaining a blood sample from him to use a known sample for comparison. The question before this Court, however, is not whether the trial court abused its discretion, but whether the lower court s order is a departure from the essential requirements of law that may cause irreparable injury for which appellate review will be inadequate. Trepal v. State, 754 So. 2d 702 (Fla. 2000). As the following will demonstrate, Bogle 1 Those matters have not been ruled upon by the lower court and are not properly before this Court at this time. 7

has neither established irreparable injury nor a departure from the essential requirements of law. At the outset the State notes that under Florida Rule of Appellate Procedure 9.100(h), the instant petition should be denied as Bogle has an adequate remedy on appeal. See, Trepal v. State, 754 So. 2d 702, 707 (Fla. 2000)(strict filing requirements that mirror the requirements in Florida Rule of Appellate Procedure 9.100 are mandated.) Despite Bogle s attempt to assert irreparable harm based on the use of his DNA and the possible improper introduction of evidence at the upcoming evidentiary hearing, any such claim will be reviewable by this Court on appeal from the ruling on his Rule 3.850 motion to vacate. Thus, after all the facts have been considered by the lower court and actual findings made, this Court will be able to review these claims based on a complete record and the facts contained therein, rather than relying on the unsupported conjectures of petitioner. Notwithstanding the forgoing, Bogle is not entitled to relief. On October 1, 2001, 925.11 Fla. Stat. (2001), which provides a procedure under which a defendant may petition a court to order an examination of DNA evidence postsentence by the Florida Department of Law Enforcement (FDLE), became effective. Subsequently, this Court promulgated Florida Rule of 8

Criminal Procedure 3.853 setting forth the procedures for filing a Motion for Postconviction DNA Testing by a defendant. Neither the statute nor the rule expressly address the State s existing rights with regard to testing of evidence or refer to the State s ability to conduct testing of its own evidence. Bogle argues, however, that since 925.11(4)(a) requires governmental entities in possession of physical evidence to maintain evidence collected at the time of the crime for which a postsentencing testing of DNA may be requested, the State cannot subject the evidence in question to any further testing. Plainly, the intent of that provision is to prevent the disposal of evidence to insure that it is available if the defendant wishes to seek post-conviction testing. The State does not agree that the testing of evidence equates with disposal as contemplated by the statute. If that were true, the statute would limit the State s right to test evidence initially. Morever, the statute makes it clear that in order to prevent the disposal of evidence postsentencing, the burden rests on the defendant to declare his intent to seek such testing. The statute expressly provides for the destruction of evidence upon notice to the sentenced defendant, any counsel of record, the prosecuting authority, and the Attorney General. FSA 9

925.11(4)(c) If, within 90 days after sending the notification, the defendant does not file a petition for postsentencing DNA testing pursuant to this section or a request that the evidence not be destroyed because the sentenced defendant will be filing the petition before the time for filing it has expired, the evidence may be destroyed. Bogle has not filed such a request nor claimed that one would be forth coming in the eight-plus months since the State gave notice of its intent to conduct additional testing. As such, he has waived any right to complain about the State s use of this evidence for further testing. The only other statute that addresses the State s ability to obtain post-conviction testing is FSA 943.325 (2001). This statute provides for blood samples to be taken from any person convicted and incarcerated for an enumerated felony, including first degree murder, for DNA testing and allows the State Attorney to make a request for additional blood samples. Nothing in 925.11 or 943.325 in any way limits the testing sought in the instant proceeding. Thus, as no rule or statute expressly precludes the State from post-conviction testing, the trial s court ruling that the statute does not apply to the State is not an essential departure from the requirements of law and this petition must fail. See, Ivey v. Allstate Ins. Co., 10

774 So. 2d 679, 682 (Fla. 2000)(Without controlling precedent, improper to conclude court violated a "clearly established principle of law.") Bogle also alleges that he has no confidence in FDLE or any law enforcement affiliated laboratory and, therefore, any testing by a laboratory not of his choosing will be suspect. Clearly, this is an issue that can be raised on appeal from the Rule 3.850 ruling and be decided on the facts, if this evidence is actually introduced in an evidentiary hearing. Moreover, Bogle s claim lacks any merit. FDLE is the testing facility chosen by the legislature for post-conviction DNA testing. See, Florida Statute Sections 925.11 and 943.325. Thus, if the defendant had filed his own request for testing pursuant to 925.11, FDLE would be the laboratory to do the testing, regardless of his lack of confidence in it or any other law enforcement trained laboratory. In the instant case, the State initially suggested that the F.B.I. would retest the evidence originally submitted to them for testing by Hillsborough County Sheriff s Office in 1991. Upon Bogle s objection to the testing being done by the same laboratory which they were asserting error by in the motion to vacate, Assistant State Attorney Sharon Vollrath suggested that the testing be conducted by FDLE as set forth in the Post- 11

Conviction DNA statute. Undersigned counsel has since discovered that FDLE does not conduct mitochondrial DNA testing. Accordingly, since the purpose of the testing sought by the State was to have tests conducted on the existing evidence, some of which has previously produced inconclusive results due to an insufficient sample, it may be necessary for some of the testing to be conducted by another laboratory. 2 Upon making this discovery, undersigned counsel, with the agreement of ASA Vollrath, contacted counsel for Bogle, Linda McDermott, and offered to have this testing done by a mutually agreeable laboratory. Ms. McDermott declined the State s offer. Thus, despite the claim in the petition that Bogle would be harmed because the sample may be tested by a laboratory Bogle has no faith in, the obvious conclusion is that Bogle simply does not want this evidence tested. Nowhere is there a provision for the defendant to have testing done by a laboratory of his choosing, just as there is no provision for Bogle to block testing by the State. The law only provides for him to seek testing upon the proper showing. Bogle s position is particularly specious given his claim that he is an innocent man. As such it would seem that testing would be to his 2 Section 925.11(h) provides that [a]ny DNA testing ordered by the court shall be carried out by the Department of Law Enforcement or its designee, as provided in s. 943.3251. 12

benefit. Regardless, testing by FDLE or its designate complies with the statute and does not equate with irreparable harm to the defendant or a departure from the essential requirements of law. Bogle s challenge to the invasion of his body as a violation Schmerber v. California, 384 U.S. 757 (1966) and its progeny is equally without merit. Schmerber holds that the warrantless taking of a blood sample to secure evidence of blood-alcohol content is appropriate incident to arrest. Id. at 771. Schmerber does not limit the State s ability to take a blood sample after conviction and sentence. Under Florida law, the State has a right to obtain his blood sample upon his conviction for murder. FSA 943.325 Therefore, taking a blood sample is not an unconstitutional intrusion into his body in violation of Schermber or the Fourth Amendment as suggested by petitioner. See, Validity, Construction, and Operation of State DNA Database Statutes, 76 ALR5th 239 (2001) (noting generally courts have rejected claim that DNA database statutes authorize an unreasonable search and seizure under either traditional Fourth Amendment analysis, the doctrine of prisoners' reduced expectation of privacy, or the "special needs" doctrine.) In point of fact, the State already has a DNA sample from Bogle to use as a comparison. Bogle s DNA sample was taken on 13

October 4, 1996 and is on file at FDLE. However, as Bogle is challenging the veracity and integrity of FDLE and the F.B.I., the State sought the sample to assure Bogle s satisfaction with the source used for comparison. Accordingly, even if this Court should find that the granting of the State s request for a blood sample was a departure from the essential requirements of law resulting in irreparable harm, the State can still submit evidence for testing using the DNA sample presently on file. See, 943.3251(3) Fla. Stat. (2001). However, as the State is clearly authorized to obtain a sample for post-conviction DNA testing and, indeed has already done so, Bogle is not entitled to relief. See, 943.325(11) Fla. Stat. (2001). Similarly, Bogle s complaint that the State has not made a sufficient showing of good cause under State v. Lewis, 656 So. 2d 1248 (Fla. 1994), is meritless. The State s ability to test this evidence is not a discovery request pursuant to Rule 3.850 and is not limited by the filing of Bogle s motion for postconviction relief. Nevertheless, the allegations made by Bogle in his motion to vacate establish good cause for the State to investigate those allegations and the trial court s granting of the State s motion is not a departure from the law as set forth in Lewis which makes it discretionary for trial judges to order discovery into matters which are relevant and material. Id. at 14

1250. As he does in the instant petition, Bogle has asserted post-conviction allegations that the DNA evidence relied on in the instant case was erroneous and that he is actually innocent of the crime. Under the law, the State is entitled to rebut said challenge by interviewing witnesses and reviewing the files, records and evidence. 3 The request to do such testing in no way suggests that the State s confidence in the accuracy of its conviction is sagging, but, rather, denotes the State s interest in maintaining a validly obtained conviction by rebutting any claims of error or prejudice. 4 Finally, as a policy matter it would be illogical to limit the State s ability to submit evidence for postsentence testing. In fact, Justice Anstead, in his concurring opinion in Amendments to Florida Rules of Criminal Procedure 3.851, 3.852, and 3.993 and Florida Rule of Judicial Admin. 2.050, 797 So. 2d 1213 (Fla. 2001), this Court has praised the Legislature for enacting legislation for postsentence DNA testing, because the 3 While it is clearly his burden to establish these facts, this Court has recognized the State s right to present rebuttal evidence. Occhicone v. State, 768 So. 2d 1037, 1050 (Fla. 2000)(proper for prosecutor to testify as a rebuttal witness at post-conviction evidentiary hearing); Cottle v. State, 733 So. 2d 963, 970 (Fla. 1999)(State may rebut post-conviction allegations.) 4 In point of fact, defendant Bogle references the prosecution s obligation to learn of evidence favorable to a defendant and disclose it. 15

legislation has sent out a strong signal that all available safeguards should be utilized to insure that no one who may be innocent of the crime or not deserving of the punishment be executed. All involved must now pull together to insure the system works and strikes the proper balance. Id. at 1213. In fact, some State Attorneys have initiated review of the physical evidence in their death penalty cases. 5 Although such extraordinary means are not required and, clearly, depend on the circumstances in any given case, they should not be limited here when Bogle has presented absolutely no legal basis for this Court to do so. As Bogle has failed to establish that the lower court s ruling is an essential departure from the requirements of law and that he will suffer irreparable harm for which there is no adequate remedy, this petition should be denied and the stay of proceedings lifted. 5 For example, in the warrant proceedings of the Amos Lee King case, Sixth Circuit State Attorney Bernie McCabe issued a directive to review the physical evidence in every death penalty case from that office tested, including the evidence retained in King s case, due to this recent development of procedures to secure DNA testing. See, King v. State, 2002 WL 54414 (Fla. January 16, 2002). 16

CONCLUSION WHEREFORE, for the foregoing reasons, Respondent respectfully requests that this Court DENY the petition and lift the stay of proceedings. Respectfully submitted, ROBERT A. BUTTERWORTH ATTORNEY GENERAL CANDANCE M. SABELLA Sr. Assistant Attorney General Florida Bar No. 0445071 2002 North Lois Avenue, Suite 700 Westwood Center Tampa, Florida 33607 (813) 801-0600 (813) 356-1292 COUNSEL FOR RESPONDENT CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Regular Mail to Linda McDermott, Assistant CCC - Northern Region, 1533-B South Monroe Street, Tallahassee, Florida 32301, this day of February, 2002. 17

COUNSEL FOR APPELLEE 18

CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this response is 12-point Courier New, in compliance with Fla. R. App. P. 9.210(a)(2). COUNSEL FOR APPELLEE 19

IN THE SUPREME COURT OF FLORIDA BRETT A. BOGLE, Petitioner, vs. CASE NO. SC01-1701 Lower Court No. 91-12952 Division II STATE OF FLORIDA, Respondent. / INDEX TO ATTACHMENTS A. Status Order (6 June 2001 Hearing), dated June 13, 2001. B. Bogle's Notice of Appeal, dated June 21, 2001. C. Bogle's Motion to Stay Proceedings Pending Appeal to the Florida Supreme Court, dated June 21, 2001 and Order on Defendant's Motion to Stay Proceedings Pending Appeal to the Florida Supreme Court, dated July 16, 2001. D. Correspondence from Sharon Vollrath, Assistant State Attorney to Terri L. Backhus, Esq. with attached U.S. Department of Justice documentation on FBI crime laboratory. E. Replacement Order on State's Motion for Continuance to Draw Blood and oral Motion to Continue the filing of the Answer to Defendant's Motion for Post-Conviction Relief, dated July 24, 2001, nunc pro tunc to July 16, 2001. F. Order on State's Motion to Draw Blood Sample. 20