IN THE SUPREME COURT OF FLORIDA ,

JASON ANDREW SIMPSON,

Appellant,

v. Case No. SC12-633

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE FOURTH JUDICIAL CIRCUIT,IN AND FOR DUVAL COUNTY, FLORIDA

AMENDED ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI

ATTORNEY GENERAL

STEPHEN R. WHITE

ASSISTANT ATTORNEY GENERALFlorida Bar No. 159089

Office of the Attorney GeneralPL-01, The CapitolTallahassee, F1 32399-1050Primary Email:

capapp@myfloridalegal.comSecondary Email:

Steve.White@myfloridalegal.com(850) 414-3300 Ext. 4579(850) 487-0997 (FAX)

COUNSEL FOR APPELLEE

TABLE OF CONTENTS

PAGE#

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RESPONSE TO APPELLANT ' S REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . 1

PENDING FLORIDA SUPREME COURT CASES . . . . . . . ... . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Timeline....................................................2

Trial Facts................................................10

1. Simpson v. State, 3 So.3d 1135, 1138-39 (Fla. 2009) (boldtypeface in original), provided an overview of the factsadduced at trial: . . . .. . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . 11

2. Simpson's incriminating DNA, hair, and shoe size linkedhim to this double murder with an axe. . . . . . . . .. . . ... . . 13

3. The phone number where Simpson was staying was the lastnumber recorded on the victim' s pager. . . . . . . . . . . . . . . . . 14

4. About 12:30pm after the murders, the police observedSimpson's freshly cut hand, which was consistent withwielding a sharp object to chop up the victims........15

5. Simpson story about how his hand was injured conflictedwith other evidence. ..................................15

6. Simpson demonstrated a consciousness of guilt by lyingwhen he denied that the clothing, hat, and shoes werehis. .................................................16

7. Simpson demonstrated a consciousness of guilt by lyingwhen he denied knowing the victims. ...................16

8. Simpson exhibited his consciousness of guilt when heabruptly left the police interview after being askedwhether he knew victim Archie Crook, Sr. ..............17

9. Simpson indicated that he knew that the victims diedfrom being cut to death. ..............................17

10. Simpson confessed to Durrance. . . . . . . . . . . . . . . . . . . . . . . . . 17

Postconviction Proceedings.................................18

11

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

OVERARCHING STANDARD OF APPELLATE REVIEW. . . . . . . . . . . . . . . . . . . 24

ISSUE: HAS SIMPSON DEMONSTRATED THAT THE TRIAL COURTREVERSIBLY ERRED IN DENYING, IN PART, SIMPSON' S "MOTION TOREQUIRE PRESERVATION AND ALLOW INSPECTION AND TESTING OFPHYSICAL AND BIOLOGICAL EVIDENCE"? (RESTATED) . . . . . . . . . . . . . . 25

A. Fla.R.Crim.P. 3.853, Frye, and the Standard of AppellateReview. ...............................................26

B. The Trial Judge's Order................................30C. Simpson has failed to meet his appellate burdens. . . . . . 31

1. Introduction........................................312. The defense's belated pursuit of postconviction DNA

testing and defense's possession of the evidence forabout two years prior to trial......................32

3. Simpson admits that he has not decided which specificitems he would like DNA tested during thesepostconviction proceedings..........................38

4. Simpson fails to show that FDLE testing would beinsufficient........................................43

5. Simpson failed to demonstrate that any of his "new"DNA techniques would be admissible . . . . . . . . . . . . . . . . . . 46

6. Simpson's appellate arguments fail to show that thetrial court's order was reversible error............47

7. In sum, long after the defense has filed its Rule3.851 motion, the defense wants this Court to orderthe trial court to authorize DNA testing on items ofevidence that the defense has not specified, by aspecific laboratory of the defense's choosing, usingtechniques that the defense has failed to demonstratewill make a difference in the refinement of theresults or that would passed Frye muster............53

CONCLUSION.................................................53

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

APPENDIX TO STATE ' S AMENDED ANSWER BRIEF

111

TABLE OF CITATIONS

CASES PAGE#

Alston v. State, 723 So.2d 148 (Fla. 1998) ....................30

Archer v. State, 613 So.2d 446 (Fla. 1993) ....................50

Armstrong v. State, 642 So.2d 730 (Fla. 1994) .................48

Bates v. State, 3 So.3d 1091 (Fla. 2009) ..................28, 52

Bryant v. State, 901 So.2d 810 (Fla. 2005) ....................50

Butler v. Yusem, 44 So.3d 102 (Fla. 2010) .....................24

Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) ............30

Caso v. State, 524 So.2d 422 (Fla. 1988) ......................25

Cole v. State, 895 So.2d 398 (Fla. 2004) ..................28, 38

Franqui v. State, 59 So.3d 82 (Fla. 2011) .....................49

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ....26 passim

Gore v. State, 32 So.3d 614 (Fla. 2010) ................28-29, 38

Hayes v. State, 660 So.2d 257 (Fla.1995) ......................29

Helton v. State, 947 So.2d 495 (Fla. 3d DCA 2006) .............51

Hildwin v. State, 951 So.2d 784 (Fla. 2006) ...................30

Hitchcock v. State, 866 So.2d 23 (Fla. 2004) ..........27, 38, 42

Houston v. State, 931 So.2d 205 (Fla. 5th DCA 2006) ...........38

Huff v. State, 569 So.2d 1247 (Fla. 1990) .....................30

Huff v. State, 622 So.2d 982 (Fla. 1993) .......................5

Jaworski v. State, 804 So.2d 415 (Fla. 4th DCA 2001) ..........25

Johnston v. State, 27 So.3d 11 (Fla. 2010) ....................43

IV

Lott v. State, 931 So.2d 807 (Fla. 2006) ..................28, 38

Mendoza v. State, 87 So.3d 644 (Fla. 2011) ....................29

Murray v. State, 838 So.2d 1073 (Fla. 2002) ...................12

Newberry v. State, 870 So. 2d 926 (Fla. 4th DCA 2004) .........44

Ochran v. U.S., 273 F.3d 1315 (11th Cir. 2001) ................25

Overton v. State, 976 So.2d 536 (Fla. 2007) ............29 passim

Ramirez v. State, 651 So.2d 1164 (Fla.1995) ...................29

Ray v. State, 755 So.2d 604 (Fla. 2000) .......................30

Richardson v. State, 437 So.2d 1091 (Fla. 1983) ................48

Robertson v. State, 829 So.2d 901 (Fla. 2002) .................24

Robinson v. State, 865 So.2d 1259 (Fla. 2004) .................28

Scott v. State, 46 So.3d 529 (Fla. 2009) ......................51

Simpson v. Florida, 130 S.Ct. 91, 78 USLW 3172 (2009) .....passim

Simpson v. State, 3 So.3d 1135 (Fla. 2009) ................passim

State v. Hankerson, 65 So.3d 502 (Fla. 2011) ..................24

State v. Kelley, 588 So. 2d 595 (Fla. 1st DCA 1991) ...........48

Steinhorst v. State, 412 So.2d 332 (Fla.1982) ..............49-50

Tillman v. State, 471 So.2d 32 (Fla. 1985) ....................50

Tompkins v. State, 872 So.2d 230 (Fla. 2003) ...............52-53

Trease v. State, 768 So.2d 1050 (Fla. 2000) ...................30

Waterhouse v. State, 82 So.3d 84 (Fla. 2012) ..................28

Willacy v. State, 967 So.2d 131 (Fla. 2007) ...................52

V

OTHER AUTHORITIES

Fla.R.App.P. 9.020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fla.R.App.P. 9.210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fla.R.App.P. 9.420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fla.R.Crim.P. 3.851.......................................passim

Fla.R.Crim.P. 3.853 .......................................passim

VI

PRELIMINARY STATEMENT

This brief will refer to Appellant as such, Defendant, or by

proper name, e.g., "Simpson." Appellee, the State of Florida,

was the prosecution below; the brief will refer to Appellee as

such, the prosecution, or the State.

"PDNA" references the current appellate record for this

postconviction DNA litigation, followed by applicable volume

number (s ) and page number ( s ) .

The record on direct appeal is referenced by Roman numeral (s)

followed by applicable page number (s) . For example, "V 911-15"

references the sentencing order's findings of five aggravators.

Unless the contrary is indicated, bold-typeface emphasis is

supplied; cases cited in the text of this brief and not within

. quotations are underlined; other emphases are contained within

the original quotations .

By separate motion accompanying this amended brief, the State

has requested that this amended brief be substituted for the

Answer Brief served and filed earlier this week.

RESPONSE TO APPELLANT ' S REQUEST FOR ORAL ARGUMENT

By separate document, Appellant Simpson has requested oral

argument. The State defers to the sound discretion of the Court

whether oral argument would assist the Court in reaching a

decision in this case. However, the State suggests that the

briefs, the trial court's order, and the record provide ample

background for the Court to decide to affirm the trial court's

order, making oral argument unnecessary.

PENDING FLORIDA SUPR m: COURT CASES

The following cases are currently pending before this Court

concerning underlying Duval Circuit Case 2002-CF-11026 in which

Simpson was convicted for the murders of Archie Crook, Sr., and

Kimberli Kimbler and sentenced to death:

SC12-633, (this case) in which Simpson indicates he isappealing pursuant to Fla.R.Crim.P. 3.853; this brief isfiled in SC12-633; and,

SC12-605, in which Simpson is petitioning for, in essence,writ-relief from trial court rulings concerning evidentiarymatters.

STATEMENT OF THE CASE AND FACTS1

The Initial Brief (IB 1-28) discusses Simpson's view of the

facts at length. As authorized by Fla.R.App.P. 9.210 (c), the

State substitutes its rendition of the case and facts in lieu of

Simpson's.

TIMELINE.

Among the arguments infra, the State will contend that the

lengthy background and context for Simpson's DNA-related motion

support the reasonableness of its denial. Therefore, at this

1 With some modifications and additions, the State is usingthe facts in its Response in SC12-605.

2

juncture, the State provides an outline of the lengthy

procedural history of the case through a timeline, which may

also serve as an index to the locations of various aspects of

the record. The timeline is followed by a summary of facts.

DATE

1999

2003-2006

EVENT

Archie Crook Sr. and Kimberli Kimbler,murdered. (XIII 527-28, 538-39)

Defense's DNA Lab possessed multiple items ofevidence to afford it the opportunity toconduct DNA testing. (See PDNA/XI 2038, 2040-41); II 298; VI 1146-48, 1152-54; VII 1161-71,1209-1210, 1220-22, 1226-27; see also, e.g., II276-84; III 574-75; VII 1175-84, 1195, 1235-37)

2007 The Honorable Charles W. Arnold, Jr., presidedover jury trial in which the jury found Simpsonguilty as charged of the First Degree Murder ofArchie Crook, Sr., and Kimberli Kimbler. (V791-92; XIX 1725-27)

2007 Jury recommended the death penalty by votes of8-4 and 9-3. (V 820-21, XXII 1976); deathsentence imposed on Simpson for each count (V908-33, X 1791-1807).

2/12/2009 On direct appeal, Simpson v. State, 3 So.3d1135 (Fla. 2009) (FSC Case No. SC07-798),affirmed the convictions and death sentences.

10/5/2009 United States Supreme Court denied Simpson'sPetition for Writ of Certiorari at Simpson v.Florida, 130 S.Ct. 91, 78 USLW 3172 (2009) (USSCCase No. 08-10414).

1/15/2010 Mr. Mills entered his appearance "as retainedcounsel for the Defendant," indicating that heis not registry counsel (PDNA/I 138), and on3/16/10,2 Mr. Mills moved to have Mr. Taylor

2 Prior to 3/10/10, Christopher Anderson had been appointed asregistry counsel for Simpson (PDNA/I 29), Linda McDermott

3

DATE EVENT

appointed as registry counsel for Simpson(PDNA/I 140-44), which was granted 3/24/10(PDNA/I 145-46) .

8/9/2010 Status conference at which Simpson'spostconviction counsel (Taylor) indicated that,except for getting a "couple" more documents," [w] e are on track" to f ile Simpson' s Rule3.851 postconviction motion by its one-yearOctober 2010 deadline. (PDNA/X 1944-45)

10/1/2010 Simpson filed his 72-page "Defendant's Rule3.851 Motion for Collateral Relief After DeathSentence." (PDNA/I 157 to PDNA/II 232, plusattachments)

10/28/2010 Status conference at which discussed timing ofState ' s response (PDNA/X 1965-66) and Simpson ' spostconviction counsel (Taylor) said "we'll besending over a couple of motions concerningsome experts" (PDNA/X 1967-68) .

11/24/2010 Hearing (PDNA/X 1970-86) on State's Emergency .Motion for Interim Court Order and ResponseOpposing Defendant's "Notice on Intent toInterview Jurors" (PDNA/II 313-39) , whichconcerned the defense's Notice of Intent toInterview Jurors (PDNA/II 306-308; see alsoDefendant ' s response at PDNA/II 344-47) ; trialcourt indicated that it will not permit jurorinterviews "based upon" the defense's "notice"(PDNA/X 1982; see also orders at PDNA/II 342,368-69) .

12/1/2010 State filed 81-page written Response OpposingDe fendant ' s Motion for Postconviction relief .

appeared as retained counsel for Simpson (PDNA/I 42-43), MalloryKent appeared as retained counsel (PDNA/I 116; see Id. at 122,124), Linda McDermott withdrew at Simpson's request (PDNA/I 113-14) , and Mallory Kent withdrew (PDNA/I 121-25) .

3 Depending in how it is calculated, the deadline may havebeen 10 /4 /10 .

4

DATE EVENT

(PDNA/II 370 to PDNA/III 450)

1/18/20114 Status conference at which --

- trial court indicated its intent to schedulea Huff' hearing (PDNA/X 1951);

- Simpson's postconviction co-counsel (Mills)indicated that the defense "need[s] to amend"Simpson's postconviction motion, that theState's postconviction response "pointed outa few things we do need to correct," that he(Mills) is not a registry counsel, and thatco-counsel (Taylor) will need to be replaceddue to health issues (PDNA/X 1952-54);

- trial court indicated that "we will certainlyaccommodate" Simpson's counsel in scheduling(Id. at 1955) and solicited input fromSimpson's counsel "how much more time" wouldbe needed "to file amendments and prepare fora case management conference (Id. at 1959);

- counsel for the State indicated that "we willrespond accordingly" (Id. at 1959).

2/22/2011 Co-counsel for Simpson (Mills) filed a "Noticeof Status of Registry Counsel," stating that inmid-January 2011, registry counsel (Mr. Taylor)indicated that he anticipated being able towork on this case after an upcoming hospitalstay, that on 1/28/11 registry counsel wasdischarged from the hospital with a positiveprognosis, that registry counsel is willing towithdraw if Simpson wishes, and that registrycounsel "is actively working with" a DNA expertand a crime scene reconstruction expert, andthat "it will take" the "defense team" 45 to 60days "to prepare an amended petition."(PDNA/III466-68)

4 The record incorrectly indicates the year as ·2010. (SeePDNA/X 1948)

s Huff v. State, 622 So.2d 982 (Fla. 1993), the basis for thecase management provision in Fla.R.Crim.P. 3.851(f) (5) (A).

5

DATE EVENT

3/21/2011 Defendant's Motion to Appoint Sonya Rudensteinand Discharge Clyde M. Taylor, Jr., (PDNA/III476-77), granted on 3/29/11 (Id. at 479-80).

10/10/2011 Hearing at which --

- Simpson's counsel indicated that the defense"still" intends to file an amendedpostconviction motion to fix "some minorerrors," "address matters from the State'sresponse," and "add a couple of potentiallynew claims that we're going to ask for leaveto add" (PDNA/X 1990-91);

- defense argued that there were some missingdocuments it needed (Id. at 1992-99);

- the defense said it wanted to do someadditional DNA testing on the evidence, wouldfile a motion on the matter, but would "tryto work with" the State to meet the State'sconcerns regarding the defense examining theevidence in a "secure laboratory typefacility to avoid any contamination" (Id. at1991-95, 2007-2010);

- a State's attorney indicated that FDLEinitially transmitted its records in November2009 (Id. at 1994);

the trial court --

- said it intended to "get everything finishedin accordance with" this Court'sdeadlines/guidelines (Id. at 1994);

- set a deadline of 30 days (11/10/2011, Id. at1999), for the defense's amendedpostconviction motion "with the caveat thatthere may be some new grounds that come up onevidence you discover after that," which" [w]e'll deal with ... at the time" (Id. at1997).

11/8/2011 Simpson's Motion to Require Preservation andAllow Inspection and Testing of Physical andBiological Evidence ("DNA Motion") . (PDNA/III576-600) [this motion precipitated the order atissue here]

11/15/2011 !Hearing at which DNA and evidence-review

6

DATE EVENT

11/21/2011

discussed (PDNA/XI 2012-82); at the hearing thefollowing were discussed:

- various records (PDNA/XI 2025-36, 2043-44,2069-70);

- a handwriting expert (Id. at 2036-40, 2071);

- the defense's possession of a "majority" or"all" of the prosecution's evidence for "overa year-and-a-half" prior to trial (Id. at2038, 2040-41); Cellmark records regardingthe defense's possession of the evidence,including the prosecutor's lack of knowledgeabout what the records would show (Id. at2040-43, 2069);

- the defense postconviction team's DNA motion(PDNA/XI 2046-68);

- the defense postconviction team's announcedintent to amend its postconviction motion,and the State's indication that it would moveto strike it if it did not comply with Rule3.851 (PDNA/XI 2071-80); and,

- the next hearing date as December 15, 2011,for which the trial court indicated itswillingness to hear evidence concerning theDNA Motion (PDNA/XI 2065-67, 2Q79-81).

Simpson filed his 156-page' "Amended InitialRule 3.851 Motion for Collateral Review andMemorandum of Law." (PDNA/IV 735 to PDNA/V 895,plus attachments)

12/1/2011 State's Motion To Compel Compliance With Rule3.851's Amendment Requirements Or,Alternatively, State's Motion To Strike AmendedRule 3.851 Motion (PDNA/V 966-75), to which thedefense postconviction team responded on12/8/2011 (PDNA/VI 999-1102).

In addition to the amended motion being about twice thenumber of pages as the original postconviction motion, it used areduced font size and added 31 new claims and sub-claims (SeePDNA/VI 1126-33; compare original motion at PDNA/I 157 et seq.).

7

DATE EVENT

12/7/2011 Jacksonville Sheriff's Office's Response toDefendant's Motion to Compel (PDNA/V 978-88),including indicating the JSO's' "willing[ness][to] allow defense counsel to inspect all itemsof physical evidence in a supervised manner soas.to preserve the integrity of the evidence"and some details of efforts to coordinate (Id.at 979).

12/8/2011 State's Response to Defendant's Motion forPost-Conviction DNA Testing Pursuant to Rule3 . 853 . (PDNA/V 989-95) [on which the Statecontinues to rely here]

12/8/2011 Hearing on State's Motion To Compel ComplianceWith Rule 3.851's Amendment Requirements Or,Alternatively, State's Motion To Strike AmendedRule 3.851 Motion (PDNA/XI 2083-2106), at whichthe trial court orally announced its ruling(Id. at 2093-94).

12/12/2011 Order Granting in Part State's Motion to Compel..., directing the defense to specify whichclaims in the amended motion are new andrequiring the State to respond to the amendedmotion by January 20, 2012. (PDNA/VI 1013-14)

12/15/2011 Hearing at which the following topics werediscussed:

- records (PDNA/XI 2110, 2112-17);

- a handwriting expert (PDNA/XI 2117-18);

- the sheriff's attorney indicating that all ofthe items of missing evidence were locatedexcept five pieces of a nine-piece bed (Id.at 2111-12), to which Simpson's counselinterjected a pager, a videotape, and a blackbook that the attorneys said they would workit out (Id. at 2111-12);

- when the trial court asked if there isanything else that "affects the sheriff'soffice," Simpson's counsel was silent, and

Jacksonville Sheriff's Office.

8

DATE EVENT

the sheriff's attorney and the Detective leftthe hearing (See PDNA/XI 2117-18);

- the "DNA issue," including the presentationof no testimony (See PDNA/XI 2118-65), butalso, the trial court directed that theparties depose the defense expert, Ms. Word,instead of presenting her testimony then atthe hearing (See PDNA/XI 2162-64).

12/21/2011 State's Supplemental Response to Defendant'sMotion for Post-Conviction DNA Testing Pursuantto Rule 3.853. (PDNA/VI 1082-83)

12/30/2011 Simpson's Reply to State's Response to Motionto Require Preservation and Allow Inspectionand Testing of Physical and BiologicalEvidence, including an affidavit from CharlotteWord and 2005 correspondence from her to trialdefense counsel Refik Eler. (PDNA/VI 1088-1109)

1/3/2012 Defendant's Notice of Correlation BetweenClaims in original and Amended Rule 3.851Motions (PDNA/VI 1126-33), designating 31claims and sub-claims as "not directly raisedin the Original Motion."

1/25/2012 State's 131-page Amended8 Response OpposingDefendant's Amended Postconviction Motion.(PDNA/VII 1339 to PDNA/VIII 1475), including a"Continuing Objection" to Simpson amending andadding 31 claims without a showing of "goodcause" or "due diligence" (Id. at 1345-47).

2/21/2012 Defendant's Supplemental Memorandum in Supportof Motion regarding Physical Evidence(PDNA/VIII 1535-47), with Word's depositionattached (PDNA/VIII 1548 to PDNA/IX 1646).

2/23/2012 Hearing at which records were discussed(PDNA/XI 2171-95); the State indicated that theState had not yet been provided trial defensecounsels' files and that attorney-client

s The State s initial response was filed three weekdaysearlier, on 1/20/2012. (See PDNA/VII 1204 et seq.)

9

DATE EVENT

privilege has been waived due to IAC claims, towhich Simpson's postconviction counselresponded that they still wished to reviewdefense counsels' files to confirm that theywould not be asserting attorney-clientprivilege on anything in it (PDNA/XI 2196-2201) .

3/22/2012 A status conference to schedule the Huf fhearing and the evidentiary hearing. (PDNA/XI2206-2217)

4/2/2012 Simpson's Petition for Review of Nonfinal Orderin Capital Case (Regarding Inspection andTesting of Evidence), in SC12-605, to which theState has responded in that case.

4/2/2012 Simpson's Notice of Appeal filed regardingFla.R.Crim.P. 3.853, resulting in this case(SC12-633) .

4/19/2012 Petition for Review of Non-Final Order in DeathPenalty Postconviction Proceeding or,Alternatively, Petition for Writ ofProhibition, in SC12-763, which this Courtgranted on 6/4/2012 and stayed the lower courtproceedings.

TRIAL FACTS.

The State argues infra that Simpson' s proposed DNA analyses

(of . undetermined items of evidence) pale in comparison with the

trial evidence introduced against him. Therefore, the State

provides a detailed summary of that evidence.

10

1. Simpson v. State, 3 So.3d 1135, 1138-39 (Fla. 2009) (boldtypeface in original), provided an overview of the facts adducedat trial:

The Guilt Phase

In the late evening hours of July 15, 1999, or the earlymorning hours of July 16, 1999, Simpson went to the home ofArchie Crook, Sr. , and Kimberly Kimbler in Jacksonville,Florida, armed with an ax. Simpson entered the home, wentinto the master bedroom where Crook and Kimbler weresleeping, and proceeded to use the ax to hack Crook andKimbler to death. Simpson inflicted several blows onCrook's face and neck, breaking his jawbone and severinghis carotid artery. Simpson struck Kimbler, who was betweenseven and seven and a half months pregnant, in the back ofher arm, shattering the bone. Simpson then inflictednumerous blows on Kimbler's head and neck, ultimatelybreaking her neck bone. Defensive wounds found on bothvictims showed that they attempted to fend of f Simpson.

Detectives located an ax containing Crook and Kimbler's DNAin the backyard of the Crook and Kimbler home. They alsolocated a sweatshirt, a pair of sweatpants, shoes, and ahat in a pile behind an air-conditioning unit on theproperty of a church located directly behind the home.Kimbler's DNA was found on the sweatshirt, sweatpants, andshoes. Crook's DNA was found on the sweatpants. Simpson'sDNA was found on the sweatshirt and sweatpants, and two ofSimpson's hairs were collected from the debris sweep of thesweatshirt, sweatpants, and hat. Fibers matching thesweatshirt and sweatpants were found on a barbed-wire fencelocated right behind the back door of the Crook and Kimblerhome. Additionally, Simpson confessed to an acquaintancethat he murdered Crook and Kimbler.

On January 29, 2007, the jury found Simpson guilty of thefirst-degree murders of Crook and Kimbler.

The Penalty Phase

The penalty phase commenced on February 6, 2007, at whichtime both the State and Simpson presented evidence. TheState presented evidence that Simpson was previouslyarrested for armed robbery, which he admitted committing,and that during the robbery Simpson told the victim, 'I'llblow your brains out' and not to look at him again or hewould 'blow his Mother-F[']ing head off.' Simpson pleadedguilty in that case to the lesser-included offense of grand

11

theft in exchange for cooperation with law enforcement inother cases.

Simpson presented evidence from a psychiatrist whotestified that violence was a constant feature in Simpson'shome during his developmental period, that he had a geneticpredisposition to alcohol and substance abuse, and that hestarted using alcohol and drugs at age ten. Simpson'salcohol and drug abuse continued until his arrest in thiscase, at which point he was using $1, 000 a week worth ofcocaine, plus other drugs and alcohol. The psychiatristopined that both the inheritance pattern and observation ofviolence as a youth resulted in a twenty percent increasein the possibility of Simpson having a behavior problem ordissocial personality or becoming a criminal. Simpsonattempted suicide numerous times, beginning when he wasyoung, and several times during his hospitalization fordrug abuse, depression, and psychiatric disorders, andduring his incarceration.

Simpson's sister testified that she was terribly afraid ofSimpson as a child because his moods would change, he of tenran away from home, and he was threatening. His sisteracted as a surrogate mother because his parents werelargely absent from his life. Other witnesses presented bySimpson testified that he cooperated with law enforcementin other cases despite death threats to himself and hismother, that he was a good worker who was respectful, andthat he was knowledgeable of the Bible and very religious .

In reviewing the sufficiency of the evidence, this Court

summarized:

The State presented evidence that Simpson confessed toDurrance . This constituted direct evidence of Simpson' sguilt. See Murray v. State, 838 So.2d 1073, 1087 (Fla.2002) . Moreover, there was evidence that Simpson's DNA wason the sweatshirt and sweatpants that were linked to themurders in that they contained the victims' blood, werefound on.the church property directly behind Crook's house,and matched material found on the barbed wire fence rightoutside the back door to the house. Simpson's hairs werefound among the sweatshirt, sweatpants, and hat. Finally,other circumstantial evidence suggested Simpson's guilt,such as: Simpson's initial denial of knowing the victimsand his immediate departure from the police interview afterbeing asked whether he knew Archie Crook, Sr.; his denialthat the clothing, hat, and shoes were his; his freshly

12

injured hand and conflicting story about how he got theinjury; and the telephone number of his mother ' s home,where he· stayed, as the last number on the victims' pager.

Simpson, 3 So.3d at 1147-48.

The State supplements this court ' s summary with the following

details.

2. Simpson's incriminating DNA, hair, and shoe size linked himto this double murder with an axe.

Simpson' s DNA' was on the sweatshirt and sweatpants in a

number of locations (XVI 1185-87, 1190, 1191-93, 1195-96; XVII

1211, 1259; XVII 1321-22; 1329-30) , and Simpson' s hairs were

identified in the recovered clothing (XVI 1197-98; XVII 1212,

1332-33) ; the clothing was linked to the murders in several

ways :

- the clothing was found on the church property directlybehind the victims' house (XIV 610-11, 698-704, 721-33),and Kimbler's blood droplets were found near the backdoorof the victims' house (XIII 596; XIV 715-16);

9 The Odds Of a stain On the left shoulder of the sweatshirtcoming from anyone other than Simpson were 5.1 quadrillionCaucasions (XVII 1321-22) ; DNA found on the inside of thewaistband of the sweatpants was attributable to Simpson at oddsof "one person in six billion males" (XVII 1329-30) ; oddsattributable to Simpson for DNA found on the inside cuffs of thesweatpants were about one in nine billion (XVII 1329-30).

Dr. Tracey explained factors that cause DNA to degrade. (XVII1327-28) He explained that perspiration from the most recentwearer of clothes can degrade the DNA from an earlier wearer.Bacteria "eat" DNA. (XVII 1332)

13

- the sweatpantsl° also contained both victims' blood (XVI1174 et seg. ; XVII 1211) ;

- Material in the recovered sweatshirt and sweatpantsmatched" material snagged on, respectively, upper andlower barbed wire found in the same direction as theclothing behind the victims' house (XIII 604-605; XVII1268-82; see also XIII 558-59, 562-63);

- An axe was found in the same direction from the house asthe snagged clothing and the pile of clothing (SE #86;XIV 606-609; see also XIII 562-64)"; the axe wasconsistent with the victims' injuries (XV 844) andcontained Ms . Kimbler ' s blood (XVI 1172 - 73) ;

- Shoes, about the same size as Simpson's shoes (See XVIII1417-18; see also XIX 1642), were recovered with thesweatpants and sweatshirt; Ms. Kimbler's blood wasidentified on the shoes, (XVI 1182-83; XVII 1332) .

3. The phone number where Simpson was staying was the lastnumber recorded on the victim's pager.

Simpson's mother's telephone number was the last number on a

pager recovered next to the victim's bed at the murder scene.

(See XIV 734-35; XIV 655, 671, 674, 679, 681; XVII 1390-91,

1393) ; Simpson had been staying with his mother and, in fact,

Detective Hinson found Simpson at his mother's residence about

1° Analyzing the sweatshirt for secondary or minorcontributors, Little Archie "shares the 15 allele, " which wasfound on the sweatshirt; this allele is observed in about one-fourth of the population. (XVI 1194. See also XVII 1324-25)

The sweatshirt and the material on the upper barbed wirematched on 135 characteristics. The sweatpants and the materialon the lower barbed wire matched on 106 characteristics. (XVII1268-82)

Some socks were recovered in the vicinity of the axe, but,otherwise, no evidence linked the socks to the murder, and thesocks were not part of the State ' s theory of the case . (See XIX1675-94)

14

12:30pm after the murders (XIV 655) and Simpson admitted being

there overnight by stating he had gotten upset during the night

and hit an electrical panel in his mother's garage (See XIV 656-

57); Simpson also testified that he "was living at [his]

mother's" house July 15-16, 1999 (XVII 1390-91; see also XVIII

1424, 1438) .

4. About 12:30pm after the murders, the police observedSimpson's freshly cut hand (XIV 656-57), which was consistentwith wielding a sharp object to chop up the victims.

5. Simpson story about how his hand was injured conflicted withother evidence.

Simpson testified at trial that he received the cut when he

checked the electrical panel at his mother's house due to a

power outage. (See XVII 1391-93) However, an employee from the

Jacksonville Electrical Authority, whom Simpson called as a

trial witness, testified that a power outage only lasted three

minutes on July 16, 1999 (See 1468-70); further, on July 16,

1999, Simpson did not mention a power outage when Detective

Hinson inquired of Simpson about the cut hand; instead, Simpson

told Hinson that he had gotten upset during the night and hit an

electrical panel in his mother's garage, causing the cut. (XIV

656-57)

15

6. Simpson demonstrated a consciousness of guilt by lying whenhe denied that the clothing, hat, and shoes were his.

Detective Gilbreath testified that he showed Simpson three

photographs of the killer's clothes, including two close-ups

(See SE #s 27, 29, 31, and 32) , " and Simpson repeatedly stated

that the clothes were not his and mentioned nothing about any of

his clothes being taken by "Little Archie. " (XVII 1349-51)

Simpson testified at trial that he did not recognize the

clothes from SE #33 because of poor quality (XVIII 1409-1410,

1446) and that Little Archie had intended to take some dark

clothing from him sometime before the murder to steal a

Chevrolet Impala. (XVII 1384-90) When Simpson was shown the

photographs by the police, Simpson did not equivocate and he did

not complain about the quality of the photograph, did not

indicate that his dark sweats had been taken, and did not

mention someone using his clothes to steal an Impala. (See XVII

1350 -51)

7. Simpson demonstrated a consciousness of guilt by lying. whenhe denied knowing the victims.

On November 8, 2001, Simpson lied to Detective Bialokowski

(XV 949-50) and, on September 4, 2002, lied to Detective Dale

Gilbreath (XVII 1339-43) when he initially denied knowing the

At trial, Simpson continued to deny that the hat and theshoes were his . (XVIII 1411)

16

victims even though he had previously complained to Detective

Hinson that victim "Big Archie" (and his son) had been putting

the word out on him that he was snitching for the police (XIV

659) and even though subsequently Simpson admitted knowing the

victims (See XIV 657-60, 786-87; XVII 1375-76; XVIII 1425, 1427;

XV 949-51; XVII 1343-45) .

8. Simpson exhibited his consciousness of guilt when he abruptlyleft the police interview after being asked whether he knewvictim Archie Crook, Sr. (See XV 949-50)

9. Simpson indicated that he knew that the victims died frombeing cut to death.

On January 16, 1999, when Detective Hinson, who had not

indicated how the victims were killed, asked Simpson if he knew

anything about the murders, Simpson responded, "when you live by

the sword you die by the sword" and shrugged his shoulders . (XIV

659-60; see also Simpson's confession to Durrance discussed

infra)

10. Simpson confessed to Durrance (XV 876-81) .

Days prior to Big Archie ' s death, Simpson told Durrance that

he intended to rob Big Archie and that Big Archie wanted him

(Simpson) to kill Durrance. (XV 871, 874) After the murders,

Simpson came by Durrance ' s house and wanted Durrance to front

him some drugs . Durrance told him that "he should already have

some money, " because he thought that Simpson had robbed Big

Archie. Simpson said, "I'm the one who killed him, you know I

17

did." He said he "waited outside for a little while, I guess .

until they went to sleep, and then snuck in through a window . . .

the laundry window, I think. " Simpson said he used an axe, and

hit Archie first. "Kim got up apparently startled, she tried to

run for it, and he, I guess, turned on her and hit her with the

axe several times." He "continued to hit her with the axe."

Simpson said he could hear Archie "making gurgling noises . "

Simpson referred to the murders as his "wet work. " Simpson was

boastful. (XV 878-80) Later, Simpson returned to Durrance's home

and told Durrance that the police took his DNA; he wanted to

know if Durrance had told anyone about the murders . (XV 881)

POSTCONVICTION PROCEEDINGS.

As indicated in the Timeline supra, Simpson's Fla.R.Crim.P.

3 . 851 mot ion was due on October 4 or 5 , 2010 . Compare

Fla. R . Crim. P . 3 . 851 (d) with Simpson v. Florida, 130 S. Ct . 91, 78

USLW 3172 (2009) (USSC Case No. 08-10414) .

On August 9, 2010, Simpson's registry counsel indicated that,

except for getting a "couple" more documents, " [w] e are on

track" to f ile Simpson ' s Rule 3 . 851 postconviction motion by its

one-year October 2010 deadline. (PDNA/X 1944-45)

After filing his Rule 3.851 postconviction motion (PDNA/I

157 to PDNA/II 232, plus attachments), registry counsel's health

problems were disclosed (PDNA/X 1952-54), registry counsel

offered to stay on the case (PDNA/III 466-68), but he ultimately

18

withdrew and Ms. Rudenstein appeared as registry counsel

(PDNA/III 476-77, 479-80) .

In January 2011, the defense postconviction team indicated

that it intended to amend Simpson' s postconviction motion, but

did not mention DNA testing. (See PDNA/X 1952-54)

In February 2011, Simpson's postconviction counsel indicated

that registry counsel "is actively working with" a DNA expert

and a crime scene reconstruction expert, and that "it will take"

the "defense team" 45 to 60 days "to prepare an amended

petition." (PDNA/III 466-68)

Subsequently, Simpson's defense team alleged that they

attempted to view the evidence three months later at the

Jacksonville Sheriff's Office's (JSO's) warehouse in May 2011.

(PDNA/III 584-85)

In October 2011, Simpson's counsel indicated that the defense

"still" intends to file an amended postconviction motion to fix

"some minor errors, " "address matters from the State's

response, " and "add · a couple of potentially new claims that

we're going to ask for leave to add." (PDNA/X 1990-91) The

defense also indicated it wanted to do some additional DNA

testing on the evidence, would file a motion on the matter, but

would "try to work with" the State to meet the State's concerns

regarding the defense examining the evidence in a "secure

19

laboratory type facility to avoid any contamination. " (Id. at

1991-95, 2007-2010)

On November 8, 2011, Simpson filed his Motion to Require

Preservation and Allow Inspection and Testing of Physical and

Biological Evidence ("DNA Motion") (PDNA/III 576-600), which is

the motion precipitated the order at issue here (PDNA/IX 1768-

79, attached as Appendix infra) . The Motion alleged that the

defense made an arrangement with a detective to view evidence in

the JSO's possession, but, when Simpson's postconviction team

arrived at the JSO on May 18, 2011, the detective indicated that

the prosecutor directed that evidence not be opened, and the

prosecutor told one of Simpson' s attorneys that "he would only

allow the evidence to be viewed in a lab setting" to "prevent

contamination. " (PDNA/III 584 -85)

In December 2011, State provided a detailed response to the

DNA Motion. (PDNA/V 989-95)

On December 7, 2011, the Jacksonville Sherif f ' s Of f ice (JSO) ,

in its response to Defendant's Motion to Compel, indicated that

it had tendered its cooperation with the postconviction defense

concerning viewing the evidence:

. . . following the November 15, 2011 hearing undersignedcounsel and Detective Meachum asked defense counsel toidentify those additional items of physical evidence shedesires to view so that Detective Meachum could advise onits status. As of the date of filing this response, defensecounsel still has not identified the items at issue. Anemail was sent to defense counsel on December 6, 2011,again asking for specifics, with no reply to date. The JSO

20

is willing [to] allow defense counsel to inspect all itemsof physical evidence in a supervised manner to as topreserve the integrity of the evidence; however, defensecounsel needs to specify the additional items she seeks toinspect.

(PDNA/V 979)

At the hearing on December 15, 2011, the JSO' s attorney

indicated that all of the items of missing evidence were located

except five pieces of a nine-piece bed, to which Simpson's

counsel interjected a pager, a videotape, and a black book that

the attorneys said they would work it out. (PDNA/ 2111-12) When

the trial court asked if there is anything else that "affects

the sheriff's office," Simpson's counsel was silent, and the

sheriff's attorney and the Detective left the hearing (See

PDNA/XI 2117-18) .

At the December 15, 2011 hearing, the State questioned

whether Simpson had demonstrated the admissibility of the "new"

DNA techniques (PDNA/XI 2157) and stated "we're not afraid of .

the testing" (Id. at 2152) . Simpson's counsel argued that they

are proceeding on both IAC and Rule 3.853 (See PDNA/XI 2120-47,

2159) and that they want all the testing done with the "best"

available techniques, including on items not previously tested

(PDNA/XI 2136-37, 2158-59) . Simpson's counsel indicated it would

be "fine" if the court waited until after it heard IAC-related

evidence to pursue which specific items of evidence would be

subjected to testing (Id. at 2159-60).

21

When Simpson's counsel contended that she wanted

mitochondrial DNA testing on the hairs found in the clothes, the

prosecutor responded that some of the hairs had already been

subjected to mitochondrial DNA analysis, and that technology has

not advanced since the trial. (See PDNA/XI 2136-37; see also

PDNA/VI 1082)

The parties deposed Ms . Word, who Simpson intended to use as

an expert, (PDNA/VIII 1548 to PDNA/IX 1646) and filed additional

pleadings concerning the DNA (PDNA/VI 1082-83, 1088-1109;

PDNA/VIII 1535-47) .

The trial court rendered the order that is the subject of

this appeal. (PDNA/IX 1768-79, attached as Appendix infra)

The State elaborates on aspects of the proceedings in the

Argument section.

SUMMARY OF ARGUMENT

Simpson waited to seek DNA testing until after he filed his

Rule 3.851 motion and after its deadline. Simpson's DNA Motion

was too little, too late.

He sought DNA testing through a motion that was facially

insuf f ic ient on a number of grounds . It was conditioned upon

Simpson's expert, in the future, identifying the specific items

to be tested. The expert has not yet identified them even though

the State has offered access to the evidence in a setting that

would secure the integrity of the evidence. Therefore, the

22

motion failed to specify the items, contrary to the requirements

of Fla.R.Crim.P. 3.853.

Simpson's motion also failed to justify the "new" DNA

techniques he wished to use at the lab that he chose by

specifying how these "modern" techniques would be admissible

under Frye. Indeed, he wanted several types of items tested that

had not yet been tested, and he wanted them tested at the lab he

chose, essentially ignoring the rule's requirement of testing at

FDLE unless "good cause" is shown. Simpson's wish is not "good

cause." Further, as the trial court's order explained in detail,

Simpson also failed to show a reasonable probability of a

different result at the 2007 trial.

For these and other reasons argued in greater detail infra,

the reasons in the trial court's order (PDNA/IX 1768-79,

attached as Appendix) , and the reasons in the State ' s response

to Simpson's DNA Motion (PDNA/V 989-95),. the trial court's order

denying, in part, Simpson's DNA Motion merits affirmance.

23

ARGUMENT"

OVERARCHING STANDARD OF APPELLATE REVIEW.

Because rulings of the trial courtis are supposed to be the

subject of an appeal, the "Tipsy Coachmen" principle applies: a

"trial court's ruling should be upheld if there is any legal

basis in the record which supports the judgment . " " [T] he

reviewing court may not preclude an appellee from raising an

alternative basis to support the trial court's ruling solely

because the argument was not preserved. " State v. Hankerson, 65

So.3d 502, 505-507 (Fla. 2011). Accord Robertson v. State, 829

So.2d 901 (Fla. 2002)(collected cases and analyzed the

parameters of "right for any reason" principle of appellate

review) ; Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) ("key to

this ["Tipsy Coachman"] doctrine is whether the record before

the trial court can support the alternative principle of law") ;

In its Response to Simpson's Petition in SC12-605, theState had questioned the timeliness of the petition. In hisreply in that case, Simpson pointed out that the trial court'sorder, signed on February 27, 2012, according to the Duvalclerk's docketing, was not filed until March 1, 2012. April 1,2012, was a Sunday. Therefore, in this regard, it appears thatSimpson is correct, that his Petition and his Notice of Appeal,were, in effect, filed on the 30th day after the trial court'sorder was rendered. Compare Fla.R.App.P. 9.020(h) ("[r]endition"occurs when signed order filed with clerk) with Fla.R.App.P.9.420(f) (Sunday excluded). Therefore, the State does not raisethe timeliness of Simpson's appeal here.

is Even in cases of fundamental error, the focus is on a trialcourt ruling, that is, one that, subject to fundamental-error'shigh appellate burden, should have been rendered.

24

Caso v. State, 524 So.2d 422, 424 (Fla. 1988) (". . . affirmed,

even when based on erroneous reasoning, if the evidence or an

alternative theory supports it") .

Therefore, because the trial court's order or ruling is the

subject of the appellate review, even an argument that an

appellee does not make on appeal should be considered as a basis

for affirmance if it supports the trial court's decision. See

Jaworski v. State, 804 So.2d 415, 419 (Fla. 4th DCA 2001) ("we

are obligated to entertain any basis to affirm the judgment

under review, even one the appellee has failed to argue") . See

also Ochran v. U.S., 273 F.3d 1315, 1316 (11th Cir. 2001) ("We

conclude that summary judgment for the defendant was

appropriate, but for a dif ferent reason") .

ISSUE: HAS SIMPSON DEMONSTRATED THAT THE TRIAL COURT REVERSIBLY

ERRED IN DENYING, IN PART, SIMPSON'S "MOTION TO REQUIREPRESERVATION AND ALLOW INSPECTION AND TESTING OF PHYSICAL ANDBIOLOGICAL EVIDENCE"? (RESTATED)

Over a year after Simpson's one-year postconviction deadline,

Simpson sought to have some undetermined evidentiary items DNA

tested through "new" techniques that he failed to demonstrate

met Frye's standards for admissibility. He has tendered too

little, too late, to support reversing the trial court's ruling.

25

A. Fla.R.Crim.P. 3.853, Frye, and the Standard of AppellateReview.

Fla.R.Crim.P. 3.853 specifies the criteria for determining

whether the trial court reversibly erred in denying Simpson's

DNA Motion.

Fla . R . Crim. P. 3 . 853 (b) requires the DNA Motion be under oath,

which it satisfied (PDNA/III 596) ."

Fla . R . Crim. P. 3 . 853 (b) also requires that the DNA Motion

prima facie include the following, which were not satisfied:

(1) a statement of the facts relied upon in support of themotion, including a description of the physical evidencecontaining DNA to be tested and, if known, the presentlocation or last known location of the evidence and how itoriginally was obtained;

(2) a statement that the evidence was not previously testedfor DNA, or a statement that the results of previous DNAtesting were inconclusive and that subsequent scientificdevelopments in DNA testing techniques likely would producea definitive result establishing that the movant is not theperson who committed the crime;

(3) a statement that the movant is innocent and how the DNAtesting requested by the motion will exonerate the movantof the crime for which the movant was sentenced, or astatement how the DNA testing will mitigate the sentencereceived by the movant for that crime;

(4) a statement that identification of the movant is agenuinely disputed issue in the case and why it is an issueor an explanation of how the DNA evidence would eitherexonerate the defendant or mitigate the sentence that themovant received;

(5) a statement of any other facts relevant to the motion;and

Any defense reliance upon unsworn attempts to meet Rule3.853's requirement would not satisfy the Rule.

26

Fla . R . Crim. P . 3 . 853 (c) specif ies that the DNA Motion must be

facially sufficient and provides for a response, after which the

trial court "enter [s] an order on the merits of the motion or

set the motion for hearing. "

According to Fla . R . Crim. P . 3 . 853 (5) , the trial court "shall

make the following findings when ruling on the motion:"

(A) Whether it has been shown that physical evidence thatmay contain DNA still exists .

(B) Whether the results of DNA testing of that physicalevidence likely would be admissible at trial and whetherthere exists reliable proof to establish that the evidencecontaining the tested DNA is authentic and would beadmissible at a future hearing.

(C) Whether there is a reasonable probability that themovant would have been acquitted or would have received alesser sentence if the DNA evidence had been admitted attrial.

(6) If the court orders DNA testing of the physicalevidence, the cost of the testing may be assessed againstthe movant, unless the movant is indigent. If the movant isindigent, the state shall bear the cost of the DNA testingordered by the court.

(7) The court-ordered DNA testing shall be ordered to beconducted by the Department of Law Enforcement or itsdesignee, as provided by statute. However, the court, upona showing of good cause, may order testing by anotherlaboratory or agency certified by the American Society ofCrime Laboratory Directors/Laboratory Accreditation Board(ASCLD/LAB) or Forensic Quality Services, Inc. (FQS) ifrequested by a movant who can bear the cost of suchtesting.

Hitchcock v. State, 866 So.2d 23, 27 (Fla. 2004), explained

the specificity requirements that the movant, "in pleading the

requirements of rule 3.853, must lay out with specificity how

the DNA testing of each item requested to be tested would give

27

rise to a reasonable probability of acquittal or a lesser

sentence." Hitchcock continued by holding that the defendant

there failed to meet his burden:

In order for the trial court to make the required findings,the movant must demonstrate the nexus between the potentialresults of DNA testing on each piece of evidence and theissues in the case.

See also, e.g., Gore v. State, 32 So.3d 614, 620 (Fla.

2010) ("Gore has not carried his burden to explain, with

reference to specific facts about the crime and the items

requested to be tested, how the DNA testing will exonerate him

or mitigate his sentence in this case"); Bates v. State, 3 So.3d

1091, 1098 (Fla. 2009) ("'the movant must demonstrate the nexus

between the potential results of DNA testing on each piece of

evidence and the issues in the case'"); Lott v. State, 931 So.2d

807, 820 (Fla. 2006) ("' [i]t is the defendant's burden to

explain, with reference to specific facts about the crime and

the items requested to be tested, how the DNA testing will

exonerate the defendant of the crime or will mitigate the

defendant's sentence'"; quoting Robinson v. State, 865 So.2d

1259, 1265 (Fla. 2004)); for a recent case discussing multiple

aspects of DNA and related evidence, see Waterhouse v. State, 82

So.3d 84, 97-101 (Fla. 2012).

Gore, 32 So.3d st 617-18 (Fla. 2010) (quoting Lott, 931 So.2d

at 820-21, quoting Cole v. State, 895 So.2d 398, 403 (Fla.

2004)), reasoned that "this Court has rejected claims where the

28

defendant was 'merely speculating' and has 'repeatedly cautioned

that "[r]ule 3.853 is not intended to be a fishing

expedition. " ' "

Concerning Fla.R.Crim.P. 3.853's burden that the movant

demonstrate that "the results of DNA testing of that physical

evidence likely would be admissible, " for new techniques of

scientific testing, Florida has retained the test under Frye v.

United States, 293 F. 1013 (D.C. Cir. 1923), which has multiple

components .

' In utilizing the Frye test, the burden is on the proponentof the evidence to prove the general acceptance of both theunderlying scientific principle and the testing proceduresused to apply that principle to the facts of the case athand. ' Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)(emphasis added) . With regard to the testing proceduresused, DNA test results are generally accepted as reliablein the scientific community, provided that the laboratoryhas followed accepted testing procedures that meet the Fryetest to protect against false readings and contamination.Hayes v. State, 660 So.2d 257, 264-65 (Fla. 1995) .

Overton v. State, 976 So.2d 536,. 550 (Fla. 2007).

The State also notes that, contrary to the suggestion of

Simpson's postconviction counsel, for an IAC claim. allegedly

based upon a lack of DNA testing, Mendoza v. State, 87 So.3d

644, 666 (Fla. 2011) (footnote omitted), held that the

postconviction testing must have met the Frye test as of the

time of trial, not as of the time of postconviction proceedings:

"Because such a test had not passed the Frye test at the time

Mendoza was tried, the circuit court granted the State's motion

29

to exclude on the basis that the issue was whether counsel

rendered ineffective assistance in 1992 at the time of trial. "

Where evidence has been presented to the trial court,

" [t] rial court rulings on the admissibility of evidence are

generally reviewable for abuse of discretion. Ray v. State, 755

So.2d 604, 610 (Fla. 2000); Alston v. State, 723 So.2d 148, 156-

57 (Fla. 1998) ." Hildwin v. State, 951 So.2d 784, 791 (Fla.

2006). In demonstrating abuse of discretion, the non-prevailing

party below must establish on appeal that the trial court's

ruling was unreasonable. See Trease v. State, 768 So.2d 1050,

1053 n.2 (Fla. 2000) ("Discretion is abused only 'when the

judicial action is arbitrary, fanciful, or unreasonable, which

is another way of saying that discretion is abused only where no

reasonable [person] would take the view adopted by the trial

court'"; quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.

1990)); Canakaris v. Canakaris, 382 So.2d 1197,1203 (Fla.

1980) ("where no reasonable man would take the view adopted by

the trial court") .

B. The Trial Judge's Order.

The State attaches, as the Appendix to this brief, the trial

court's Order and submits that its reasoning (PDNA/IX 1770-76)

on its face, merits affirmance.

Consistent with the trial court's reasoning, including

regarding "reasonable probability of acquittal, " and, comporting

30

with the right-for-any-reason standard on appeal on other

matters, See "OVERARCHING STANDARD OF APPELLATE REVIEW" section

supra, the State submits the following discussion as additional

support for af f irming the trial court ' s denial of postconviction

DNA testing requested in Simpson' s DNA Motion (PDNA/III 576-96) .

C. Simpson has failed to meet his appellate burdens.

1. Introduction.

In essence, Simpson's DNA Motion asserted that his "expert""

had a right to open packages of evidence at the JSO warehouse on

May 18, 2011,18 and, through subsequent litigation in the trial

court had a right to require the submission of undetermined

items of evidence for DNA testing at a laboratory of Simpson's

choice using "new" DNA techniques that Simpson failed to allege

met Frye's elements in their basic science as well as in the

unknown specific procedure that Simpson would have used here. In

contrast to Simpson's bald assertions, Simpson does not have the

right to access evidence without reasonable controls . And, as

detailed in "A. Fla. R . Crim. P. 3 . 853, Frye, and the Standard of

For the sake of argument, the State assumes that JaniceJohnson would qualify as some sort of "crime scene expert"(PDNA/III 583) .

18 According to Simpson' s DNA Motion, this is what theprosecutor denied Simpson on May 18, 2011. The Motion concededthat the prosecutor said he would allow the evidence to beviewed by Simpson's postconviction defense team "in a labsetting. " (See PDNA/III 585) .

31

Appellate Review, " supra, Simpson's non-specific conclusory

allegations regarding "new" DNA techniques, without specifying

which items of evidence he wishes analyzed, without specifying

anything about the science underlying the "new" techniques, and

without specifying the procedures that would be applied to

assure admissibility, Simpson' s DNA Motion was facially

insuff ic ient .

Moreover, these deficiencies are compounded with Simpson not

even beginning to seek DNA testing until after his Rule 3.851

deadline .

It was reasonable of the trial court to deny the DNA Motion

for multiple reasons.

2. The defense's belated pursuit of postconviction DNAtesting and defense's possession of the evidence for abouttwo years prior to trial.

Over a year after Simpson's postconviction deadline,

Simpson's postconviction team moved that various categories of

items of evidence be tested or re-tested using DNA techniques at

a lab that may or may not be admissible under Frye .

On October 1, 2010 , Simpson f iled his 72 -page Rule 3 . 851

postconviction motion. (PDNA/I 157 to PDNA/II 232, plus

attachments) In the months leading up to filing the motion, the

record indicates that Simpson' s postconviction team had not

requested DNA testing of any evidence using any technique, "new"

or otherwise. (See PDNA/I 1-156)

32

Even after Simpson claims that his defense team was

prohibited from opening packages of evidence at the JSO

warehouse on May 18, 2011, (PDNA/III 585; see also next sub-

section) the defense waited six months to file the DNA Motion1'

(See id. at 576 et seq.) and, the DNA Motion alleged no

specifics of what it proposed to the prosecution, in the

interim, as a reasonable accommodation for its access to the

evidence in a mutually agreeable controlled laboratory setting.

While this Court has relaxed the timeliness requirements of

Fla. R. Crim. P. 3 . 853, the state respectfully submits that the

defense should not have a "blank check" to interject a 3. 853

motion any time it wishes. Here, the defense waited too late to

file its DNA Motion to allege too little. In any event, the

timing of the DNA Motion should be weighed with other factors in

19 Only about a month prior to f iling the DNA Motion, inOctober 2011, Simpson's counsel indicated that the defense"still" intends to file an amended postconviction motion to fix"some minor errors, " "address matters from the State'sresponse, " and "add a couple of potentially new claims thatwe're going to ask for leave to add." (PDNA/X 1990-91) Thedefense also indicated it wanted to do some additional DNAtesting on the evidence, would file a motion on the matter, butwould "try to work with" the State to meet the State's concernsregarding the defense examining the evidence in a "securelaboratory type facility to avoid any contamination. " (Id. at1991-95, 2007-2010) It appears that the record in front of thetrial court was devoid of any showing that the defensemeaningfully attempted to "work" out anything with the Statebetween October and November 2011 by tendering any specificproposal meeting the State's concerns.

33

determining the reasonableness of the trial court's denial of

the Rule 3.853 aspect of the DNA Motion.

Simpson's attorneys, in the trial court, have pointed to

health issues associated with predecessor registry counsel.

However, those health issues surfaced after the defense had

already filed its Rule 3.851 postconviction motion. (Compare

PDNA/I 157 et seg. with PDNA/X 1952-54)2o Indeed, on August 9,

2010, that registry counsel represented to the trial court that

other than getting a couple of documents, the defense was "on

track" to file its postconviction motion in a timely manner,

(PDNA/X 1944-45) which it actually did on October 1, 2010.

Yet further, the defense' s delay in pursuing DNA at

postconviction is compounded by the abundant access it had to

the DNA evidence for about two years prior to the trial. (See

PDNA/XI 2038, 2040-41) ; II 298; VI 1146-48, 1152-54; VII 1161-

71, 1209-1210, 1220-22, 1226-27; see also, e.g., II 276-84; III

574-75; VII 1175-84, 1195, 1235-37)

Simpson may reply that one of his postconviction claims

alleges IAC due to a failure of defense counsel to do more. Such

an argument would overlook that the premise for Fla.R.Crim.P.

3.853 is whether DNA would show the Defendant's innocence, not

20 Moreover, Ms . Rudenstein appeared as registry counsel inMarch 2011. (PDNA/III 476-77)

34

whether trial counsel was ineffective. Accordingly, in contrast

with Simpson's desire for testing with "new" techniques, an IAC

claim must specify a DNA test that, at the time of trial, should

have been performed and would have been admitted into evidence

then and made a difference." See, e.g., Mendoza, 87 So.3d at

666. Moreover, at this juncture, the defense has thus-far

delayed the State from being able to fully respond to such an

argument because thus far Simpson's postconviction counsel have

requested that the prosecutor's access to defense counsel's file

be delayed. When the prosecutor indicated he wanted to review

trial counsel's file, Simpson's postconviction team responded

that they wanted to, prior to State access, review the file to

determine if they wished to assert any attorney-client

privileges . (See PDNA/XI 2196-2201)

Thus far, Simpson has partially revealed aspects of defense

preparation prior to the trial. On December 30, 2011, Simpson

filed a Reply to State's Response to Motion to Require

Preservation. and Allow Inspection and Testing of Physical and

Biological Evidence, including an affidavit from Charlotte Word

and 2005 correspondence from her to trial defense counsel Refik

Strickland v. Washington, 466 U. S. 668 (1984) , and numerouscases require a defendant to prove both deficiency andprejudice. At this juncture, the State does not digress into thedetails of these two-pronged burdens.

35

Eler. (PDNA/VI 1088-1109) Ms. Word indicated that, in 2004, when

Simpson's public defender contacted Orchid Cellmark, two types

of services were requested: (1) perform DNA testing and (2)

review the State laboratory testing. She was initially "assigned

as the consultant to review the DNA testing performed by the

FDLE laboratory. " (PDNA/VI 1100)

At the November 15, 2011, hearing, the prosecutor explained:

[W]e tendered the majority of the evidence to defensecounsel, and had them sign an inventory of the evidence, sothat they could have it independently DNA tested, and theywere in possession of the evidence, much of which issubject matter to a lot of these motions for over a year-and-a-half. What the experts did with the evidence, I don'tknow, but I just don't see how that's relevant, and how itwould lead to information that would somehow exculpate thedefendant.

(PDNA 2038) Thus, the prosecutor had no objection to Simpson's

postconviction team obtaining records from Cellmark to determine

what Cellmark" did with the evidence. (See PDNA/XI 2040-41)"

Subsequently, a copy of Ms. Word's file," indicating that her

records showed no pre-trial DNA testing, was provided to the

Court reporter reported Cellmark phonetically as "Salmark. "At the November 11, 2011, hearing, Simpson's counsel

indicated that, based on some conversations, Cellmark's recordswill show that trial defense counsel refused to have Cellmark doadditional DNA testing. (PDNA/XI 2059)

Simpson's Reply in SC12-605 argued that " {t]he State'ssuggestion that it will be able to 'determine the results of thedefense DNA examinations' once the stay is lifted isparticularly perplexing and troubling because the DNA laboratorythat had the subject evidence has already disclosed its file tothe State, so the State well knows that no DNA testing was ever

36

prosecutor. Ms. Word, at her January 17, 2012, deposition,

indicated that " [t] o the best of [her] knowledge none was done"

(PDNA/VIII 1601) , but, as discussed supra, she also indicated in

her affidavit that she was not initially responsible for DNA

testing of the evidence (See PDNA/VI 1100) , and also she said in

her deposition that, although it was not done in her lab, "it

was forwarded on to the Dallas laboratory when our lab closed"

(PDNA/VIII 1601) . Thus, Word indicated that she was not involved

with all aspects of the DNA at the pre-trial stage, so precisely

what Simpson ' s trial defense counsel ' s f ile shows he had done,

did not have done, and any reasons why or why not are matters

that the State will resume pressing after this appeal,

especially if Simpson is afforded an evidentiary hearing on IAC.

The following are among the areas of inquiry that the State

would press: At the pre-trial stage, precisely what defense-

counsel-initiated examinations were done or not done and where?

If any examinations did not lead to DNA testing, why or why not?

conducted for the defense." See also Simpson's counsel'srepresentation at the November 11, 2011, hearing (PDNA/XI 2059) .As a result, prior to filing this Amended Answer Brief,undersigned contacted the prosecutor and confirmed that he wasprovided, and he reviewed, a copy of Word's file, but, asdiscussed in the text above, the file was not as definitive asSimpson suggests.

37

Were these matters - subjected to reasonable strategic decisions2s

by defense counsel?

Even if the postconviction delay compounded with the lengthy

pre-trial access to the evidence were not enough to support a

denial of the DNA Motion, they, in turn, are compounded by the

failure of the defense to specify the items of evidence they

actually wanted to test, a topic the State discusses next.

3. Simpson admits that he has not decided which specificitems he would like DNA tested during these postconvictionproceedings.

As discussed in "A. Fla.R.Crim.P. 3.853, Frye, and the

Standard of Appellate Review, " supra, the defense bears the

burden of specifying each item that the defense wants to subject

to DNA testing. Here, the defense has been equivocal and

explicitly non-specific. See, e.g., Hitchcock, 866 So.2d at 27.

Indeed, here, the defense's equivocal and explicitly non-

specific request is tantamount to a request for fishing license,

contrary to this Court's caution in Gore, 32 So.3d st 617-18

(quoting Lott, 931 So.2d at 820-21, quoting Cole, 895 So.2d

403) .

Accordingly, .Houston v. State, 931 So.2d 205, 207-208 (Fla.

5th DCA 2006), applied the movant's specificity burden to a

2s Under well-established case law, a reasonable strategicdecision negates Strickland's deficiency prong, which thedefendant has the burden of proving.

38

situation in which the motion conditioned its allegations with

"if, " akin to the DNA Motion here conditioning Simpson's DNA

request upon his expert reviewing the evidence and then deciding

which items on which to request testing.

Illustrative of Simpson's equivocalness and non-specificity

is the DNA Motion itself . The motion did enumerate various items

of evidence, but then conceded that he did not know on which

items he would seek testing:

25 . . . . Additionally, Ms . Johnson' s expertise and equipmentwill allow her to determine the suitability of thisevidence for further DNA testing. Much of this evidence,including blood spattered linens, window blinds, andfurniture, has apparently never been tested at all.

(PDNA/III 584)

Even Simpson, in his Reply in the pending extraordinary writ

proceeding, admitted that "Mr. Simpson is not even sure exactly

what items he will seek to have tested or the kind of test that

will be appropriate; that can only be determined after his

experts are allowed to evaluate the evidence. " (Reply, SC12-605,

p. 13)

At a November 15, 2011, hearing in the trial court, Simpson's

counsel indicated that until the defense's postconviction

experts review the evidence, the defense would not be able to

specify which items the defense wants tested. (See PDNA/XI 2055,

2066; see also Id. at 2159) The prosecutor correctly followed up

that the first step is for the defense to decide precisely which

items of evidence the defense wants tested. (PDNA/XI 2061)

39

Yet, according to the DNA Motion, even on May 18, 2011, the

State had, in essence, offered to provide defense access to the

evidence but on terms that would maintain the integrity of the

evidence (See PDNA/III 585) , which, ultimately was the result

that the trial court's Order stressed (See PDNA/IX 1777) .

As the State discussed in its SC12-605 response, on December

7, 2011, the Jacksonville Sherif f ' s Of f ice (JSO) , indicated that

it had tendered its cooperation with the postconviction defense

concerning viewing the evidence:

. . . following the November 15, 2011 hearing undersignedcounsel and Detective Meachum asked defense counsel toidentify those additional items of physical evidence shedesires to view so that Detective Meachum could advise onits status. As of the date of filing this response, defensecounsel still has not identified the items at issue. Anemail was sent to defense counsel on December 6, 2011,again asking for specifics, with no reply to date. The JSOis willing [to] allow defense counsel to inspect all itemsof physical evidence in a supervised manner to as topreserve the integrity of the evidence; however, defensecounsel needs to specify the additional items she seeks toinspect.

(PDNA/V 979) The State has found no indication that the defense

showed to the trial court that it attempted to coordinate a

properly "supervised" viewing of the evidence.

Thus, at a hearing on December 15, 2011, the JSO's attorney

indicated that all of the items of missing evidence were located

except five pieces of a nine-piece bed, to which Simpson's

counsel interjected a pager, a videotape, and a black book that

the attorneys said they would work it out. (PDNA/ 2111-12) When

the trial court asked if there is "anything else that af fects

40

the sheriff's office," Simpson's counsel was silent, and the

sheriff's attorney and the Detective left the hearing (PDNA/XI

2117-18). If Simpson had been interested in evaluating the

evidence for DNA-testing-suitability, he should have raised it

then.

At that same December 15, 2011, hearing, Simpson's

postconviction counsel, after the JSO had left the hearing,

indicated that, for an IAC claim, they would like to have

certain items tested. (PDNA/XI 2130-31, 2139-40, 2159) On the

other hand, at that same December 15, 2011, hearing, after the

JSO lawyer and detective had left the hearing, defense counsel,

without specifying details, also invited the court to order that

the evidence "be shipped to a lab so that Janice Johnson

[defense's postconviction "crime scene expert"] and an analyst

can look at it" to "come up with . . . a more specific list"

(PDNA/XI 2159) and then equivocated by indicating it would be

"fine" if the court waited until after it heard IAC-related

evidence (Id. at 2159-60) ." In February 2012, Simpson echoed his

position that he wants Janice Johnson to review the evidence

before he decides which items he wants tested. (PDNA/VIII 1546)

The trial court then changed various court dates andindicated that the parties would have its rulings by February 2,2012 . (PDNA/XI 2161)

41

Therefore, arguendo overlooking the belated timing of

Simpson's DNA Motion, it alleged that his postconviction team

made an effort to view much of the evidence on May 18, 2011, but

failed to show that they attempted to coordinate that effort

with the prosecutor, who, upon finding out about the defense's

efforts, intervened and required reasonable safeguards.

Subsequently, there have been obvious opportunities, even in the

trial court ' s presence , for Simpson ' s postconviction team to

discuss with the prosecutor and the JSO the specifics of

reasonably controlled access to the evidence, but, instead of

meaningfully following up on those opportunities, the

postconviction defense team initiated litigation through

Simpson's DNA Motion and filings in this Court. In this sense,

Simpson did not present to the trial court a demonstration of

specifically how he has made reasonable ef forts for his expert

to examine the evidence that have been denied. Simpson overlooks

that in postconviction proceedings, he bears the burden, which

he has failed to meet.

Given the totality of the current record, Simpson's DNA

Motion was less specific than the "general reference and

identification of the type of item was given" in Hitchcock, 866

So.2d at 27-28, and as such it was no more than an improper

request for a "fishing expedition."

42

In sum, at this juncture, it is clear that it is unclear

which specific items of evidence Simpson wanted DNA tested. As

such, this is a reason supported by the record that supports the

denial of the DNA Motion, thereby supporting affirmance.

4. Simpson fails to show that FDLE testing would beinsuf f icient .

As the prosecutor argued at the November 15, 2011, hearing,

(PDNA/XI 2060-61) the defense's list of possible items it may

wish to be tested includes a number of items that have yet to be

subjected to any testing. As such, if and when Simpson's

postconviction team specifies the items that it wishes tested

and justifies the testing according to Fla.R.Crim.P. 3.853's

burdens," then it is clear that FDLE or its designee2s should do

that testing, pursuant to Fla.R.Crim.P. 3.853(c) (7), not a

laboratory of Simpson's choosing. Simpson wishing a laboratory

other than a lab involved in the trial is not "good cause, "

Fla.R.Crim.P. 3.853(c) (7). Indeed, the prosecutor offered to

have FDLE . test items, using STR-DNA analysis, that have yet to

This assumes, arguendo, that Simpson's tardiness isoverlooked.

2a While Johnston v. State, 27 So.3d 11, 17 (Fla. 2010),

discussed Y-STR results, it is noteworthy that the labconducting the analysis was Labcorp, and the defense-chosenlaboratory to monitor the analysis from a defense perspective,was the same laboratory that Simpson demands be entrusted withthe evidence in this case (PDNA/III 594, 595) , "DNA Diagnosticsof Fairf ield, Ohio . "

43

be DNA tested. (PDNA/XI 2060-61) The prosecutor also indicated

that the State has the means to have mitochondrial DNA analysis

done. (See PDNA/XI 2136-37; see also PDNA/VI 1082)

A bare allegation of a "new and improved" method of testing

is facially insufficient. See Newberry v. State, 870 So. 2d 926,

927 (Fla. 4th DCA 2004) (test results are not "inconclusive" as

contemplated under Rule 3 . 853 (b) (2) upon an allegation that

"developments in DNA testing techniques have improved and would

produce more reliable results") .

Thus, for example, the prosecutor indicated that he had

contacted Mr. Badger, who was one of the DNA witnesses at trial

(See XVI 1109-XVII 1262) . The prosecutor then challenged the

defense to prove that their proposed new techniques would make a

difference:

I don't see an inconclusive result that was tendered attrial. There were positive 13 loci match on certain items.There were mixtures and there were primaries to themixture, and there were secondaries to the mixture, thingsof that nature .

But I'm a little unclear, and I was actually going to beasking the Court to potentially request an evidentiaryprof [f ] er on the part of , I think, it ' s DNA Diagnostic, orwhomever the defense was anticipating on using for thismini-filer DNA testing, as to have they reviewed thematerials for Mr. Badger, and what in this new advancement- - the mini- f iler advancement , would shed more light on Mr .Badger's results?

I'm not sure if they would. I mean, there was also somediscussion of why STR-DNA analysis which -- and I think theCourt's certainly hit it on the head when it came to yourprior experience.

44

What Mr. Badger did confirm for me with YSTR-DNA analysisis that it is a shared profile, YSTR profile is shared frommale inheritance down the genealogical line.

The allegations that are being raised by defense counsel inthe 3.850 is that Mr. Crooks' biological son was the trueperpetrator, and so any additional YSTR-DNA analysis on anyevidence recovered from the crime scene, in which ArchieCrook, Sr.'s, blood was spattered all over the place, isnot going to be probative to any fact that Archie Crook,Jr., may have been involved or not involved, because of thesimple fact that they share the same YSTR-DNA profile.

So when it comes to YSTR-DNA analysis, obviously, I'llfollow up with a written response, but the State'scontention is that any further YSTR-DNA analysis on thisparticular -- on these particular items, would not beprobative, because it's not going to tell you anything.They couldn' t say whether it was Little Archie or BigArchie who was the depositor of that profile on theevidence .

As for the mini-filer, I'm unfamiliar with this technology.I've never utilized this before. But I am unclear, as wasMr. Badger, as to how the mini-filer technology would beprobative in reaching a conclusion which Mr. Badger hadalready not tendered at trial and was subjected to. We alsointroduced mitochondrial DNA at trial and YSTR-DNA analysisat trial through other laboratories in the FBI on variouspieces of evidence. ...

(PDNA 2050-52)

Instead of meeting the prosecutor's challenge to prove

details of minifiler, Simpson's counsel merely stated

conclusions that it is "more accurate . " (PDNA/XI 2056) The trial

court then observed that, at that juncture, the postconviction

pursuit of more DNA analysis "may be a big wild goose chase"

(PDNA/XI 2053), a characterization that applies to this day.

45

Moreover, as discussed in the next section, Simpson's DNA

Motion failed to specify how his proposed "new" method of DNA

testing would satisfy Frye and thereby be admissible in Florida.

5. Simpson failed to demonstrate that any of his "new" DNAtechniques would be admissible.29

As discussed in "A. Fla.R.Crim.P. 3.853, Frye, and the

Standard of Appellate Review, " supra, Simpson bore the burden of

demonstrating te admissibility of his proposed DNA testing, and

for a "new" technique, he presumptively needed to show that the

test would meet Frye's burdens in order to show admissibility.

He did not meet his burdens.

At the December 15, 2011, hearing, the State disputed whether

the defense has established that the techniques it proposes are

admissible. (PDNA/XI 2157) In response, Simpson's attorney

merely stated that the defense wants the "best testing done"

(PDNA/XI 2158) but, even at that late juncture, the defense did

not specify how the defense's proposed laboratory's techniques

would be admissible under Frye. A little later in the hearing,

the defense indicated that Ms. Word is standing by to

"substantiate" the claims that they made at the hearing, but

29 While the trial court concluded that Simpson met the firsttwo prongs of Fla.R.Crim.P. 3.853, it presented no reasoning forthat conclusion. (See PDNA/IX 177) Under "Tipsy Coachman, " thetrial court's denial of the DNA Motion was correct for "anyreason, " including this one .

46

ultimately the trial court directed that the parties depose her

and submit her deposition to the Court . (PDNA/XI 2162) When Word

was deposed, she failed to specify how the "new" testing at the

de fense ' s proposed lab would mee t Frye ' s burdens . (See PDNA/VIII

1548 to PDNA/IX 1646)

6. Simpson's appellate arguments fail to show that thetrial court's order was reversible error.

As the prosecutor discussed in the trial court in his

response to the DNA motion (PDNA/V 989-95) and in a hearing on

the DNA Motion (PDNA/XI 2124-30, 2146-53), and as the trial

court found, Simpson failed to demonstrate that any of the

categories of postconviction DNA testing would "produce a

reasonable probability of acquittal or of Defendant receiving a

lesser sentence" vis-à-vis the DNA trial evidence and other

trial evidence (See PDNA/IX 1770 -76, attached as Appendix infra;

"Trial Facts" supra) .

With one exception, the trial court's order contained

detailed reasoning as to each category of evidence that

Simpson's brief discusses: Kimbler's fingernails (Compare IB 55-

56 with PDNA/IX 1773-75) , and also found that Simpson has not

shown that he can bear the cost of testing at the Diagnostics

Center (PDNA/IX 1774-75) ; clothing recovered outside near an air

conditioner (Compare IB 56-60 with PDNA/IX 1770 -73) , which

Simpson did not identify at trial as taken by Simpson's

alternative suspect, Little Archie (See XVII 1384-87) ; socks, as

47

the trial court pointed out, were recovered in Archie Crooks'

backyard but not located with the other clothing and which the

prosecutor (See XIX 1675-94) did not contend at trial the

murderer wore (Compare IB 61-62 with PDNA/IX 1775-76) . (See also

"Trial facts" supra concerning Simpson's personal deceptions and

other incriminating evidence)

Concerning blood in and around the bedroom and the backdoor,

if Simpson is suggesting (IB 62-63) that the trial court did not

rule, he is overlooking that as the Appellant, he is responsible

for obtaining a trial court ruling, and, without one, he has no

ruling to appeal. See Armstrong v. State, 642 So.2d 730, 740

(Fla. 1994) (concerning an appellate issue on a "pretrial request

for a Magnetic Resonance Imaging (MRI) test to determine whether

Armstrong had a brain tumor, a fact which could have been used

in mitigation, " "this issue is procedurally barred"; citing

Richardson v. State, 437 So.2d 1091 (Fla. 1983) (failure to

obtain ruling on motion fails to preserve issue for appeal);

State v. Kelley, 588 So. 2d 595 (Fla. 1st .DCA 1991)) . Indeed, in

this very case, on direct appeal, this Court rejected a claim,

as unpreserved, because the defense had failed to obtain a

ruling. See Simpson v. State, 3 So.3d 1135, 1146 (Fla.

2009) (Williams rule).

Moreover, the trial court not explicitly discussing blood-in-

the-bedroom and "outside the back door" is understandable

48

because, even as an insufficiently vague categories of evidence,

the DNA Motion did not develop any argument for additional DNA

testing on them. Instead, after reviewing its version of the

trial facts (PDNA/III 578-82), the motion then discussed "nail

scrapings, " "socks, " "hairs, " "clothes, " (Id. at 583)

"sweatshirt, sweatpants, sneakers, and baseball cap, " "axe and

socks" (Id. at 586-88) . The motion discussed blood in the

bedroom and "by the backdoor" in conjunction with the argument

the killer should have had blood "on his shirt" (Id. at 583-84),

not as types of evidence that Simpson might want to subject to

DNA testing.

Next, the motion inerely mentions that " [b] lood samples were

taken from throughout the crime scene" so they could be tested

in the lab, citing to the trial transcript. (See Id. at 584)

Subsequently, the motion merely lists " [b] lood swabs f rom the

bedroom floor" and does not develop any argument or even mention

any blood outside the back door. (See PDNA/IX 592)

In other words, the DNA Motion failed to develop an argument

that these bedroom-backdoor categories of evidence should be DNA

tested now, making these matters unpreserved. See, e.g., Franqui

v. State, 59 So.3d 82, 95-96 (Fla. 2011) ("defendant bears the

burden to establish a prima facie case based on a legally valid

claim; mere conclusory allegations are insuff icient " ) ;

Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) ("[F]or an

49

argument to be cognizable on appeal, it must be the specific

contention asserted as legal ground for the objection,

exception, or motion below")); Bryant v. State, 901 So.2d 810,

822 (Fla. 2005) (" [i]n order to preserve an issue for appeal, the

issue 'must be presented to the lower court and the specific

legal argument or grounds to be argued on appeal must be part of

that presentation'"; quoting Archer v. State, 613 So.2d 446, 448

(Fla. 1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.

1985))).

If somehow Simpson's motion is construed as preserving the

bedroom-backdoor-blood sub-claim and if somehow the trial

court ' s general ruling concerning "All Other Evidence" (PDNA/IX

1775) is construed as ruling on it, then the trial court's

ruling would be correct: This would be a "fishing expedition."

Indeed, Simpson's alternative suspects, Little Archie and

Smallwood, had been innocently in the residence within hours of

the murder (E.g., XIV 781-82) and the prosecutor was prepared to

prove that at one time Little Archie even lived at that house

(See PDNA/XI 2130) . See Overton v. State, 976 So.2d 536, 568-59

(Fla. 2007) ("conclusory assertion that if the hair does not

belong to Overton or the victims, it must belong to a person who

committed or participated in the crime, is far too tenuous

because there is no way to determine when, why, where, or how

the hairs attached to the tape"; "speculation . . . a basis for

50

denying a rule 3.853 motion"); Helton v. State, 947 So.2d 495,

498 (Fla. 3d DCA 2006) ("Gunderson lived with Marshall and Helton

in the home where all of these items were found ... Gunderson's

DNA on any or all of these items, in the home or in the yard, is

to be expected"); cf. Scott v. State, 46 So.3d 529, 533 (Fla.

2009)("even if DNA testing revealed that Scott's blood was not

at the scene, it would not tend to establish his innocence or

prove that he did not strike the victim") .

Simpson also mistakenly assumes that he is making a closing

argument to the Court, for example, questioning motives and re-

interpreting the evidence. (See IB 64-67) However, as summarized

in the facts supra, the totality of the incriminating evidence

was compelling, and as discussed supra, the DNA motion' s request

was equivocal and non-specific. It was incredulous at the time

of the trial, as it is now, that Simpson did not know the

detectives were discussing the murder victims (IB 66) ; it was

incredulous at the time of the trial, as it is now, that, in

spite of multiple photographs being shown to Simpson, he did not

recognize his own clothes or express any concern over them (IB

66); and it was incredulous at the time of the trial, as it is

now, that, Simpson just happens to have gashed his hand in the

very period in which the murders were inflicted with an axe when

the electricity went off for three minutes (IB 67) . And

Simpson's mother's phone number, where Simpson was living at the

51

time, just happened to be the last number on Big Archie ' s pager

(IB 67) . (See also "Trial Facts" supra)

At another point (IB 63-64), Simpson mentions juror Cody, but

not only is this argument improperly speculative, it also

overlooks that Simpson v. State, 3 So.3d 1135, 1142 (Fla. 2009),

rejected Simpson's recantation claim on direct appeal:

Under these rules, juror Cody had no right to recede fromher guilty verdict under the circumstances in this case.Because no iuror, including juror Cody, expresseddisagreement with the verdict and all twelve jurorsresponded af f irmatively when asked whether the verdictswere in fact theirs, the clerk was required to record theverdict .

Finally, the State notes that Simpson improperly jumbles the

standard for reviewing the DNA evidence with other standards. He

argues (IB 68-72) that his cumulative DNA evidence should

accumulate with his other proposed postconviction evidence. He

overlooks that Fla.R.Crim.P. 3.853's "would have been acquitted"

designates a reasonable probability at the past trial, not

Simpson's imaginary future trial. See, e.g., Bates v. State, 3

So.3d 1091, 1098-99 (Fla. 2009) (applying test that "defendant

would have been acquitted if the DNA evidence had been admitted

at trial") ; Willacy v. State, 967 So.2d 131, 145 (Fla.

2007) ("State present¶ a plethora of other evidence upon which

the jury could have based its decision in convicting Willacy of

Sather's murder"); Tompkins v. State, 872 So.2d 230, 243 (Fla.

2003) ("even if the DNA analysis indicated a source other than

Lisa DeCarr or Tompkins, there is no reasonable probability that

52

Tompkins would have been acquitted or received· a life

sentence") .

Even Simpson's postconviction defense counsel argued that

postconviction DNA results only "would potentially have changed

the result . " (PDNA/XI 2057) And, "potential [] " is not

suf f ic ient .

Indeed, arguuendo, at this juncture, Simpson has proved none

of his postconviction claims, and it will be especially

interesting to see if the inherently unreliable recantation

evidence materializes. At this juncture, Simpson's

postconviction evidence is entirely speculative -- not the basis

for any reversal here.

7. In sum, long after the defense has filed its Rule 3.851motion, the defense wants this Court to order the trialcourt to authorize DNA testing on items of evidence thatthe defense has not specified, by a specific laboratory ofthe defense's choosing, using techniques that the defensehas failed to demonstrate will make a difference in therefinement of the results or that would passed Frye muster.

In other words, Simpson's belated DNA Motion was

dispositively incomplete and insuf f icient , and the trial court ' s

denial of the aspects attacked here should be affirmed.

CONCLUSION

Based on the foregoing discussions, the State respectfully

requests this Honorable Court af f irm the trial court ' s Order On

53

Defendant's Motion To Require Preservation And Allow Inspection

And Testing Of Physical And Biological Evidence (R/IV 1768-79).

CERTIFICATE OF SERVICE

I certify that a copy hereof has been furnished to thefollowing by e-mail on October 24th , 2012:

jmills@mills-appeals.com,service@mills-appeals.com,amanko@mills-appeals.com,srudenstine@yahoo.com.

CERTIFICATE OF COMPLIANCE

I certify that this brief was computer generated using

Courier New 12 point font.

Respectfully submitted and certified,PAMELA JO BONDIATTORN Y GENERAL

Byi STÈP N R. WHITEASSISTANT ATTORNEY GENERALFlorida Bar No. 159089Attorney for Appellee, State of Fla.Office of the Attorney GeneralPL-01, The CapitolTallahassee, F1 32399-1050Primary Email:

capapp@myfloridalegal.comSecondary Email:

Steve.White@myfloridalegal.com(850) 414-3300 Ext. 4579

(850) 487-0997 (FAX)

AG#: L12-2-1109

54

IN THE SUPREME COURT OF FLORIDA

JASON ANDREW SIMPSON,Appellant,

Case No. SCl2-633v.

STATE OF FLORIDA,Appellee.

APPENDIX TO STATE ' S AMENDED ANSWER BRIEF

Trial court's Order On Defendant's Motion To RequirePreservation And Allow Inspection And Testing Of Physical AndBiological Evidence (PDNA/IX 1768-79), which is the subject ofthis appeal.

IN THE CIRCUIT COURT, FOURTHJUDICIAL CIRCUIT, IN AND FOR

FILEY12MAR0121104JMES DUVAL COUNTY, FLORIDA

CASE NO.: 16-2002-CF-11026-AXXX-MA

DIVISION: CR-H

STATE OF FLORIDA,

vs.

JASON SIMPSON,Defendant.

/

ORDER ON DEFENDANT'S MOTION TO REOUIRE PRESERVATION AND ALLOWINSPECTION AND TESTING OF PHYSICAL AND BIOLOGICAL EVIDENCE

This matter came before this Court on "Defendant's Motion to Require Preservation and

AllowInspection and Testing ofPhysical andBiological Evidence"filed onNovember 8,2011. The

State filed its Response to Defendant's Motion for Post-Conviction DNA Testing Pursuant to Rule

3.853 on December 8, 2011. The State then filed a Supplemental Response to Defendant's Motion

for Post-Conviction DNA Testing Pursuant to Rule 3.853 on December 21, 2011. Defendant filed

his Reply to State's Response to Motion to Require Preservation and Allow Inspection and Testing

of Physical and Biological Evidence on December 30, 2011. Finally, on February 17, 2012,

Defendant provided this CourtwithhisSupplementalMemorandumin SupportofMotionRegarding

Physical Evidence.

In the instant Motion, Reply, and Supplement, Defendant makes several requests, which

include DNA testing, evidence review and preservation, and fingerprint examination. Defendant

requests that the following items be transported, evaluated, and tested, if viable samples exist:

a. Sweatshirt and all cuttings, trace evidence, hairs, and DNA profiles from thesweatshirt

S ..INSTRUMENT

INCOMPUTER

PAGE #1768 OF2218 .

b. Sweatpants and all cuttings, trace evidence, and DNA profiles from sweatpants

c. Baseball hat and all cuttings/trace evidence

d. Sneakers and all cuttings/trace evidence

e. Socks found in the backyard of the victim's, Archie Crook, Sr., residence and alltrace evidence

f. Axe found in the backyard ofthe victim's residence and all trace evidence, samples,swabs, and DNA profiles collected

g. Material found in the fence ofthe victim's backyard and all samples/trace evidencefrom the material

h. Kimberli Kimbler's fingernail scrapings

i. DNA profiles/standards/cheek swabs for Archie Crook, Jr., Archie Crook, Sr.,Kimberli Kimbler, Jason Simpson, Shawn Smallwood, Donald Scott Griffis, andGeorge Michael Durrance

j. Trace evidence from photos

k. Blood swabs from the bedroom floor and their DNA profiles

1. Other unidentified items: four exhibits labeled "Front" or "Back", and fourunidentified stain DNA profiles

(Def.'s Motion at 16-7.) In addition, Defendant requests that all of the evidence be reviewed by a

lab analyst and Janice Johnson, a crime scene and blood spatter expert, so theycan determine which

items have the potential to produce material results. (Def 's Reply at 10-1.) Defendant states that

once the evidence has been completely reviewed, Defendant will file an additional motion for DNA

testing of specifically listed items. (Def.'s Reply at 10-1; Def.'s Supplement at 12.)

In its response, the State argues that the previous DNA testing conducted in this case was not

inconclusive. The State further argues that Defendant cannot establish that additional or further

DNA testing, or fingerprint testing, would produce a definitive result which would exculpate

• 2

PAC E # 1769 OF 2218

Defendant.

DNA Testing Pursuant to Florida Rule of Criminal Procedure 3.853

In order to·obtain post-conviction DNA testing, a defendant's Rule 3.853 Motion must

include a statement of the facts relied upon, including a description of the physical evidence

containingDNA to be tested, and the present or last known location ofthe evidence; a statementthat

the evidence was not previously tested, or a statement that the previous DNA test results were

inconclusive and that subsequent scientific developments would likely produce a definitive result

establishing that the defendant did not commit the crime; a statement that the defendant is innocent

and how the DNA testing will exonerate the defendant; and a statement that identification of the

defendant is a genuinely disputed issue in the case. Fla. R. Crim. P. 3.853(b)(1)-(4).

In ruling on a Rule 3.853 Motion, the court must make the following findings: 1) whether

the physical evidence that may contain the DNA still exists, 2) whether the results of the testing

would be admissible at trial and whether there is reliable proof to establish that the evidence is

authentic, and 3) whether there is a reasonable probability that the movant would be acquitted or

receive a lesser sentence. Fla. R. Crim. P. 3.853(c)(5)(A)-(C). This Court finds that all of the

foregoing exist, with the exception of a reasonable probability ofacquittal.

Sweatpants/Sweatshirt/BaseballHat/Sneakers/Axe

Defendant contends that the DNA test results introduced at trial were inconclusive, in that

the testing revealed that more than one person came into contact with, and likely wore, the clothing.

(Def.'s Motion at 18,) Defendant states that the minor contributors could not be identified at the

time oftrial, but now could be due to advancements in technology. (Def.'s Motion at 18-9; Def.'s

3

PACE #17700F221R

Reply at 9.) Defendantargues that Mr. Durrance's testimonyl against Defendantwas the only direct

evidence ofDefendant's guilt, and thus, the identification ofthe other contributors could exonerate

Defendant. (Def.'s Motion at 8.) With regard to the baseball hat and sneakers, Defendant states that

his DNA was not found on either item and that the sneakers were a half size too large for his feet.

(Def.'s Reply at 5.) Defendant argues that had he worn the hat and sneakers when committing the

.crime, surely some ofhis DNA would have been deposited. (Def.'s Reply at 6.)

During the trial, the State presented the testimony of Charles Badger, a senior crime

laboratory analyst at FDLE. (T.T. at 1109-1212.) Mr. Badger conducted STR DNA testing on the

sweatpants, sweatshirt, hat, sneakers, and axe. Swabbings of the waistband of the sweatpants

contained a mixture, and the major contributor matched the DNA profile of Defendant.2 (T.T. at

1185-87.) Shawn Smallwood, Archie Crook, Jr., and George Durrance were all excluded as being

a secondary donor within the DNA mixture.3 (T.T. at 1188, 1200.) Swabbings from the leg cuffs

ofthe sweatpants also contained a mixture, with the major contributor matching Defendant's DNA

profile. (T.T. at 1188-90.) A profile of the minor contributor was not able to be determined. (T.T.

at 1191.)

Cuttings from the neckline of the sweatshirt contained a mixture, and the primary

'In his Rule 3.851 Motion, Defendant asserts a claim that Mr. Durrance has recanted histrial testimony.

2Defendant's post-conviction expert did not disagree with Mr. Badger's findings withregard to the sweatpants. (Dr. Word Deposition at 65.)

3Defendant argues that this finding was based on the unsupported assumption that therewere only two contributors to the DNA mixture, and, if the mixture contained more than twocontributors, the results would have been skewed. (Def.'s Reply at 6.) However, Mr. Badgertestified that the pattem was consistent with two individuals. (T.T. at i188.)

4

PAGE#17710F2218

contributor's profile matched the DNA profile ofDefendant. (T.T. at 1191-2.) Shawn Smallwood

and George Durrance were both excluded as the minor contributor, but Archie Crook, Jr., could not

be excluded. (T.T. at 1193-4, 1200.) However, one in four people share the DNA profile developed

in the minor profile. (T.T. at 1194.) Additionally, a white crusty substance from the sweatshirt was

tested and matched the DNA profile ofDefendant. (T.T. at 1195-6.) All other alternative suspects

were excluded as possible donors of the substance. (T.T. at 1198, 1200.)

Two cuttings were removed from the hat, however, Mr. Badger was unable to obtain a DNA

profile from the cuttings. (T.T. at 1163.) With regard to the sneakers, the primary profile matched

one ofthe victims, KimberliKimbler, and the other victim, Archie Crook, Sr., could not be excluded

as contributing to the minor profile. (T.T. at 1170.) Two hairs* recovered from the clothing were

tested, and matched the DNA profile of Defendant. (T.T. at 1197-8.) Archie Crook, Jr., Shawn

Smallwood, and George Durrance were all excluded as possible donors ofthe DNA. (T.T, at 1198.)

Finally, Defendant, Shawn Smallwood, Archie Crook, Jr., and George Durrance were all excluded

as possible secondary donors within the DNA mixture from swabbings ofthe axe.' (T.T. at 1171-3,

1200.)

The DNA evidence presented at trial was not inconclusive and no further testing would

produce a definitive result establishing that Defendant is not the person who committed the crime.

The prior testing established the presence of DNA belonging to someone other than Defendant.

However, most significantly, the evidence established that Defendant was the primary contributor

'Three hairs were provided to Mr. Badger, however, he was unable to obtain DNA offone ofthe hairs and he did not test the hair. (T.T. at 1197.)

'Victim Kimberli Kimbler was the major contributor.

5

PAGE # 1772 OF 22t8

ofDNA to the sweatshirt and sweatpants.' All other possible suspects were excluded as possible

minor contributors to the waistband of the sweatpants and the white substance on the sweatshirt.

The two hairs match each other and Defendant. The fact that Archie Crook, Jr., could not be

excluded as a possible minor contributor to the sweatshirt neckline, as the State points out, is ofno

evidentiary relevance because one in four people share that DNA profile. Establishing the identity

of the minor contributors to the sweatshirt neckline and sweatband cuffs would not produce a

reasonable probability that Defendant would be acquitted or would receive a lesser sentence.

Moreover, as stated in the Supreme Court of Florida's per curiam opinion affirming

Defendant's convictions and death sentences, there was other circumstantial evidence (aside from

the direct evidence of Defendant's confession to George Durrance) suggesting Defendant's guilt.

Simpson v, State. 3 So. 3d 1135, 1147 (Fla. 2009). This evidence included:

Simpson's initial denial of knowing the victims and his immediatedeparture from the police interview after being asked whether heknew Archie Crook, Sr.; his denial that the clothing, hat and shoeswere his; his freshly injured hand and conflicting story about how hegot the injury;andthe telephone number ofhis mother's home, wherehe stayed, as the last number on the victims' pager,

li at 1147-8. Thus, based on the DNA evidence already admitted at trial and the other evidence

establishing Defendant's guilt, further DNA testing would not produce a reasonable probability of

acquittal or ofDefendant receiving a lesser sentence.

Victim Kimberli Kimbler's Fingernail Scrapings

Defendant states that Kimberli Kimbler's fingernail scrapings were tested and the results

'Even if Archie Crook, Jr., was conclusively found to be a minor contributor to the DNAprofiles found on the clothing, there is not a reasonable probability that this fact alone wouldresult in Defendant's acquittal considering that Defendant admitted at trial to having loaned himclothing ofa similar description.

6

PAC E # 1773 OF 2218

indicated a profile consistent with either Archie Crook, Sr., or Archie Crook, Jr. (Def.'s Reply at

9.) Defendant argues that new available technologies could potentially determine who the DNA

belongs to, provided there remains an adequate sample. (Def.'s Reply at 9.) The expert consulted

by Defendant stated that testing with an autosomal STR testing kit might be able to distinguish

between father and son's DNA. (Dr. Word Affidavit at 6.) Defendant avers that the scrapings have

the power to decisively determine who Kimberli Kimbler was struggling with when she was killed.

(Def.'s Reply at 9.)

During trial, the State introduced the testimony of Shawn Weiss, the associate technical

director in the forensic identity department ofLab Corp. (T.T. at 1061-77.) Mr. Weiss determined

that both Archie Crook, Sr., and Archie Crook, Jr., were included as having been potential donors

ofthe material found on Kimberli Kimbler's nails. (T.T. at 1075.) Defendant, Shawn Smallwood,

and George Durrance were all excluded as potential donors. (T.T. at 1075.) Mr. Weiss also testified

that, assuming Kimberli Kimbler lived with Archie Crook, Sr., and had intimate contact' with him

prior to her death, it would not surprise him to find Archie Crook, Sr.'s, DNA on her nails. (T.T.

at 1075.)

Defendant has not definitively shown that testingofKimberliKimbler's fingernail scrapings

has a reasonable probability of acquitting Defendant or that Defendant would receive a lesser

sentence, In addition, Defendant has not shown that he can bear the cost of such testing and only

states that the State would save a considerable amount of money by contracting with DNA

Diagnostics Center in Ohio, where they can obtain a40% discount. (Def.'s Motion at 18.) San Fla.

'The DNA vaginal swabs ofKimberli Kimbler were determined to have semen whichmatched the DNA profile ofArcliie Crook, Sr. (T.T. at 1208-9.)

7

PAG E # 1774 OF 2218

R. Crim. P. 3.853 (c)(7) (the court may order testing by a laboratory other than FDLE, upon a

showing of good cause, if requested by a movant who can bear the cost of such testing). Thus,

Defendant's request for DNA testing ofKimberli Kimbler's fingernail scrapings is denied.

All Other Evidence*

Ultimately, for the reasons stated supra in paragraphs nine and ten ofthis Order, Defendant

cannot show that testing of these items would produce a reasonable probability of acquittal or of a

lesser sentence. Moreover, DNA testing under Rule 3.853 "is not intended to be a fishing

expedition." Hitchcock v. State. 866 So. 2d 23, 27 (Fla. 2004). Defendant must "demonstrate the

nexus between the potential results ofDNA testing on each piece of evidence and the issues in the

case." E At least some ofthe items requested are denoted as "unidentified." Clearly, ifDefendant

cannot even identify the items, Defendant cannot show the nexus between the potential results and

the issues in the case.

Further, with regard to the socks, Mr. Badger testified that he swabbed both the inside and

outside, but was unable to obtain a DNA profile. (T.T. at 1208.) The socks were not found with the

sweatshirt, sweatpants, hat, and sneakers, but instead were collected from the backyard of Archie

Crook, Sr.'s, residence. (T.T. at 562, 1207.) It is plausible that these socks were not even wom by

the killer, as they were not located with the other clothes found on the nearby church property. It is

unlikely that one would remove the socks in the backyard, then put sneakers back on or carry the

sneakers, and discard the sneakers and all the clothing on the church property. Additionally, with

regard to the 17 hairs, testing wouldnot exculpate Defendant. See Overton v. State.976 So.2d 536,

8In addition to the items in the above list set forth on pages one and two, Defendant alsorequests the testing of 17 hairs found in the debris from the clothing and the fingernail scrapingsofArchie Crook, Sr. (Def.'s Reply at 9.)

8

PAGE # 1775 OF 2218

567-8 (Fla. 2007) (testing ofhairs found in the tape used to bind the victim would not exculpate the

defendant because there was no way to determine when and how the hairs became attached to the

tape). Therefore, Defendant's request to test the remaining items is denied.

Request for DNA Testing to Prove. Request for Crime Scene Analysis, and Request forFingerprint Analysis to Prove Ineffective Assistance of Counsel

Defendant's Motion is directed at physical evidence that he seeks to have tested to exonerate

him and that he claims is also relevant to his claims that trial counsel were ineffective for failing to

utilize experts in the fields ofDNA, fingerprint analysis, and crime scene reconstruction and blood

spatter. (Def.'s Motion at 2.) Defendant seeks transport of the remaining State Exhibits and

evidence' for review by a crime scene and blood spatter expert. (Def.'s Motion at 17.) Defendant

also requests that the latent fingerprint lifts recovered at the crime scene and taken from the victims,

coupled with their negatives, be sent to a private forensic consulting company. (Def.'s Motion at

19.) Defendant states that in many cases, the consulting company has been able to find a match or

make exclusions based on fingerprints thathad previouslybeen declared ofno value. (Def.'s Motion

at 20.)

There is no general right to discovery in a post-conviction proceeding. Johnston v. State, 27

So. 3d 11,24 (Fla. 2010). Discovery within this setting is a matterwithin the trial court's discretion.

li With regard to the DNA testing, Defendant's requests arise from the claim that DNA testing has

advanced since the time oftrial. Specifically, Defendant claims that an expert could have critiqued

aspects of the State's DNA analysis and tested the fingernail scrapings. (Def.'s Motion at 7.)

Defendant does not need to re-test the evidence to prove this claim. With regard to the crime scene

'Defendant seeks all evidence listed in Exhibits A, B, and C (with some exceptions) ofhis Motion.

9

PAGE # 1776 OF 2218

analysis and fingerprint analysis, Defendant has not shown that additional testing would produce a

reasonableprobabilityofacquittal. Defendant's requests constitute a fishing expedition. Themfore,

Defendant's requests are denied.

Preservation of Evidence

Defendant states that the evidence in this case has been stored in a questionable manner.

(Def 's Motion at 12-4.) Florida Statute section 925.11(4)(a)-(b)requires that any investigating law

enforcement agency and the clerk ofthe court maintain any physical evidence collected at the time

of the crime for which a post-conviction DNA test may be requested. Thus, the Jacksonville

Sheriff's Office and the Duval County Clerk of Court are directed to ensure that the evidence in this

case is properly stored and preserved.

10

PAG E # 1777 OF 2218

Based on the foregoing, it is:

ORDERED AND ADJUDGED that:

1. Defendant's Motion to Require Preservation and Allow Inspection and Testing of

Physical and Biological Evidence is DENIED, in part, as to Defendant's request to

Allow Inspection and Testing of Physical and Biological Evidence. The Defendant

shall have thirty (30) days from the date that this Order is filed to take an appeal, by

filing Notice ofAppeal with the Clerk of the Court,

2. Defendant's request for preservation of the evidence is GRANTED. The

Jacksonville Sheriff's Office and the Duval County Clerk of Court are directed to

ensure that the evidence in this case is properly stored and preserved.

DONE AND ORDERED in Chambers, in Jacksonville, Duval County, Florida, on thisd2 eM

day ofFebruary, 2012.

Charles W. Arnold, Jr.Circuit Judge

Copies to:

Stephen White, Esq.Assistant Attorney GeneralOffice of the Attorney GeneralThe Capitol, PL-01400 South Monroe StreetTallahassee, FL 32399

Mark Caliel, Esq.Assistant State AttorneyOffice of the State Attorney220 E. Bay StreetJacksonville, FL 32202

11

PAGE # 1778 0F 2218 , 3

John S. Mills, Esq.Attorney for the Defendant203 N. Gadsen Street, Suite 1ATallahassee, FL 32301-7637

Sonya Rudenstine, Esq.Attorney for the Defendant204 W. University Ave., Ste. 5Gainesville, FL 32601

Duval County Clerk of Court

Jacksonville Sheriff's Office

Case No.: 16-2002-CF-11026-AXXX-MA

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PAG E # 1779 OF 2218