Supreme Court of Florida ____________
No. SC16-448 ____________
JASON DIRK WALTON, Appellant,
vs.
STATE OF FLORIDA, Appellee.
____________
No. SC17-1083 ____________
JASON DIRK WALTON, Petitioner,
JULIE L. JONES, etc., Respondent.
[May 17, 2018]
PER CURIAM.
This case is before the Court on appeal by Jason Walton from an order
denying a motion to vacate sentences of death under Florida Rule of Criminal
Procedure 3.851. Walton also petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained
below, we affirm the postconviction court’s denial of relief and deny Walton’s
petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
Walton was convicted and sentenced to death for the execution-style
murders of three individuals that occurred during the commission of a robbery and
burglary. Walton v. Dugger (Walton IV), 634 So. 2d 1059, 1060 (Fla. 1993).
On direct appeal, this Court affirmed the convictions but vacated the death sentences because the trial court failed to afford Walton an opportunity to confront two codefendants whose confessions and statements were presented during the penalty phase. See [Walton v. State (Walton I), 481 So. 2d 1197,] 1198-1201 [(Fla. 1985)]. The trial court conducted a second penalty phase and the jury again recommended death on all three convictions. See Walton v. State [(Walton II)], 547 So. 2d 622, 623 (Fla. 1989).[1] The trial court again imposed the death penalty on all three convictions, and this Court affirmed those sentences on appeal. See id. at 626. The United States
1. The trial judge found the following aggravating factors: (1) the murders were committed during the commission of a robbery and burglary; (2) the murders were committed for pecuniary gain; (3) the murders were committed in an especially heinous, atrocious, or cruel fashion; (4) the murders were committed in a cold, calculated, and premeditated manner; and (5) the murders were committed for the purpose of avoiding a lawful arrest. The trial judge noted that the first two aggravating circumstances would be considered as one. The trial judge found no mitigating factors and imposed the death sentence.
Walton II, 547 So. 2d at 624.
-2- Supreme Court denied certiorari review. See Walton v. Florida [(Walton III)], 493 U.S. 1036 (1990).
Walton filed his initial postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged that trial counsel was ineffective. See Walton [IV], 634 So. 2d [at] 1060- 61 . . . . After an evidentiary hearing, the trial court denied the motion. See id. Walton appealed that denial to this Court and petitioned for a writ of habeas corpus. See id. This Court initially relinquished jurisdiction to the trial court for resolution of a public records request by Walton. See id. at 1062. On remand, Walton amended his previously filed rule 3.850 motion to add claims based upon information discovered in the public records and newly adduced evidence. See Walton v. State [(Walton V)], 847 So. 2d 438, 442-43 (Fla. 2003). One such claim was that trial counsel was ineffective for failure to adequately investigate and prepare for trial. See id. at 442 n.2. The trial court again denied all of Walton’s claims. See id. at 443. Walton appealed that denial to this Court and again petitioned this Court for a writ of habeas corpus. See id. This Court affirmed the denial of Walton’s postconviction motion and denied habeas relief. See id. at 460. [This Court] also denied a subsequent petition for a writ of habeas corpus filed by Walton pursuant to Ring v. Arizona, 536 U.S. 584 (2002). See Walton v. Crosby, 859 So. 2d 516 (Fla. 2003).
Walton thereafter filed a successive postconviction motion pursuant to Florida Rule of Criminal Procedure 3.851. See Walton v. State [(Walton VI)], 3 So. 3d 1000, 1002 (Fla. 2009). The trial court summarily denied relief. See id. at 1002. Walton appealed that denial to this Court, and this Court affirmed the order of the postconviction court. See id.
Walton v. State (Walton VII), 77 So. 3d 639, 640-41 (Fla. 2011). In 2010, Walton
filed a second successive motion for postconviction relief pursuant to rule 3.851.
Id. at 641. The postconviction court denied Walton’s motion. See id. at 642. This
Court affirmed the order of the postconviction court. Id. at 644.
-3- On May 7, 2015, Walton filed a third successive postconviction motion
asserting that he should either be resentenced to life or receive a new penalty phase
due to the fact that his codefendant, Richard Cooper, was resentenced to life based
on a cumulative review of the evidence. On December 28, 2015, the
postconviction court denied Walton’s motion. On March 7, 2016, Walton filed a
notice of appeal to this Court. On September 16, 2016, this Court relinquished
jurisdiction to allow for rehearing. On October 4, 2016, the postconviction court
granted rehearing.
On June 20, 2016, Walton filed a fourth successive postconviction motion,2
asserting that changes in Florida’s capital sentencing law are part of the cumulative
review of newly discovered evidence. On January 13, 2017, the postconviction
court denied Walton’s motion. This appeal follows.
Additionally, on June 8, 2017, Walton filed a petition for habeas relief. This
Court stayed the proceedings on September 15, 2017, and then, on September 27,
2017, issued an order for Walton to show cause why Hitchcock v. State, 226 So. 3d
216 (Fla.), cert. denied, 138 S. Ct. 513 (2017), does not control.
2. Walton’s fourth successive postconviction motion reasserted, in part, Walton’s third successive postconviction motion arguments in light of Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).
-4- ANALYSIS
We affirm the postconviction court’s denial of relief for the reasons
discussed below.
Walton’s Cumulative Analysis Claim
Walton contends that a proper Swafford3/Hildwin4 cumulative analysis
requires consideration of all changes in the law that might apply if a new trial were
granted. We find this claim to be meritless.
To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So. 2d at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla. 1996)). If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence. See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991) (Jones I).
In determining whether the evidence compels a new trial, the postconviction court must “consider all newly discovered evidence which would be admissible” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916. This determination includes
3. Swafford v. State, 125 So. 3d 760 (Fla. 2013). 4. Hildwin v. State, 141 So. 3d 1178 (Fla. 2014).
-5- whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.
Jones II, 709 So. 2d at 521 (citations omitted).
When . . . the postconviction court rules on a newly discovered evidence claim after an evidentiary hearing, this Court “review[s] the trial court’s findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence.” Green v. State, 975 So. 2d 1090, 1100 (Fla. 2008). In addition, “we review the trial court’s application of the law to the facts de novo.” Id.
Swafford, 125 So. 3d at 767-68 (alteration in original) (quoting Marek v. State, 14
So. 3d 985, 990 (Fla. 2009)).
As to the first prong of the newly discovered evidence test, the
postconviction court found that the resentencing of codefendant Cooper qualified
as newly discovered evidence. We conclude that the postconviction court’s
finding is supported by competent, substantial evidence. See Jones II, 709 So. 2d
at 521 (“First, in order to be considered newly discovered, the evidence ‘must have
been unknown by the trial court, by the party, or by counsel at the time of trial, and
it must appear that defendant or his counsel could not have known [of it] by the use
of diligence.’ ” (quoting Torres–Arboleda v. Dugger, 636 So. 2d 1321, 1324-25
(Fla. 1994))).
-6- The second prong of the newly discovered evidence test requires that “the
newly discovered evidence must be of such nature that it would probably produce
an acquittal on retrial.” Id. (citing Jones I, 591 So. 2d at 911, 915). The
postconviction court found that Walton failed to show that the resentencing of his
codefendant, Cooper, to a life sentence would probably result in a life sentence for
Walton on retrial. Walton contends that the postconviction court erred because a
proper cumulative analysis, as performed in Swafford and Hildwin, requires
consideration of changes in the law. Walton asserts that his newly discovered
evidence, considered together with the changes to Florida’s capital sentencing law,
i.e., Hurst, would probably result in him receiving a life sentence; thus he is
entitled to resentencing.
As an initial matter, this Court has consistently applied its decision in Asay
v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017),
denying the retroactive application of Hurst v. Florida, 136 S. Ct. 616 (2016), as
interpreted in Hurst, to defendants whose death sentences were final when the
Supreme Court decided Ring. See, e.g., Hitchcock, 226 So. 3d at 217; Zack v.
State, 228 So. 3d 41, 47-48 (Fla. 2017), petition for cert. filed, No. 17-8134 (U.S.
Mar. 12, 2018); Marshall v. Jones, 226 So. 3d 211, 211 (Fla. 2017), petition for
cert. filed, No. 17-7869 (U.S. Feb. 20, 2018); Willacy v. Jones, No. SC16-497,
2017 WL 1033679, at *1 (Fla. Mar. 17, 2017); Lambrix v. State, 217 So. 3d 977,
-7- 988-89 (Fla.), cert. denied, 138 S. Ct. 312 (2017); Bogle v. State, 213 So. 3d 833,
855 (Fla. 2017), cert. denied, 138 S. Ct. 738 (2018); Gaskin v. State, 218 So. 3d
399, 401 (Fla.), cert. denied, 138 S. Ct. 471 (2017). Walton’s death sentences
became final in 1990. See Walton III, 493 U.S. 1036. Therefore, Walton is among
those defendants whose death sentences were final before Ring. Thus it is clear
that Hurst is not applicable to Walton.
Turning to what may be considered within a cumulative analysis, this Court
stated in Swafford:
The Jones standard requires that, in considering the effect of the newly discovered evidence, we consider all of the admissible evidence that could be introduced at a new trial. Jones II, 709 So. 2d at 521. In determining the impact of the newly discovered evidence, the Court must conduct a cumulative analysis of all the evidence so that there is a “total picture” of the case and “all the circumstances of the case.” Lightbourne v. State, 742 So. 2d 238, 247 (Fla. 1999) (quoting Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994)).
Swafford, 125 So. 3d at 775-76. This Court did not consider any change in law
within Swafford. See generally id. In Swafford, this Court reviewed an appeal
from a postconviction court’s finding that newly discovered negative acid
phosphatase5 (AP) results would not have probably produced an acquittal. See id.
at 766. This Court disagreed, holding that the newly discovered AP evidence “so
5. Acid phosphatase is commonly found in seminal fluid. See Swafford, 125 So. 3d at 766.
-8- significantly weakened the case against Swafford that it g[ave] rise to a reasonable
doubt as to his culpability for the sexual battery.” Id. at 768. This Court then, in
performing a cumulative analysis, held that the newly discovered evidence
changed the entire character of the case and affected the admissibility of evidence
that was originally presented to the jury. Id. at 775-78. In no part of this Court’s
decision in Swafford was there a discussion or consideration of statutory or
decisional changes in the law. See id. Although this Court stated that the newly
discovered evidence test “focuses on the likely result that would occur during a
new trial with all admissible evidence at the new trial being relevant to that
analysis,” there is no mention of any changes in law that must be taken into
account within a cumulative analysis. See id. at 776. Thus this Court did not hold
in Swafford that a cumulative analysis requires consideration of changes in the law
that might apply if a new trial were granted. See generally id.
Neither did this Court consider any changes in law while performing a
cumulative analysis in Hildwin. See generally 141 So. 3d 1178. In Hildwin, this
Court reviewed an appeal from a postconviction court’s denial of a motion based
on newly discovered evidence that established that the DNA did not belong to the
defendant. See id. at 1183. This Court held that the newly discovered evidence
established that the DNA found on the victim’s underwear and on the washcloth at
the crime scene belonged to another suspect, which supported the defendant’s story
-9- that he saw the killer wipe his face with a “white rag.” See id. at 1192. This Court
then held that the cumulative effect of the newly discovered evidence weakened
the case against Hildwin to such an extent that it gave rise to a reasonable doubt as
to his culpability. See id. at 1193. This Court did not discuss any change in law
that was considered within the cumulative effect of the newly discovered evidence.
See generally id.
Thus in neither Swafford nor Hildwin did this Court hold that a cumulative
analysis requires consideration of changes in the law that might apply if a new trial
were granted. See generally Swafford, 125 So. 3d 760; Hildwin, 141 So. 3d 1178.
This Court applies the Witt v. State, 387 So. 2d 922 (Fla. 1980), standard to
determine whether decisional changes in the law require retroactive application.
See Coppola v. State, 938 So. 2d 507, 510-11 (Fla. 2006); see also State v. Glenn,
558 So. 2d 4, 6 (Fla. 1990) (“[A]ny determination of whether a change in the law
requires retroactive application should be decided upon traditional principles
pertaining to changes in decisional law as set forth in Witt.” (citing McCuiston v.
State, 534 So. 2d 1144, 1146 (Fla. 1988))). Viewing decisional changes in the law
as newly discovered “facts” would erase the need for a retroactivity analysis
pursuant to Witt. See Coppola, 938 So. 2d at 510-11.
Yet Walton contends that he satisfies the second prong of the newly
discovered evidence standard because it is probable that a resentencing jury will
- 10 - not unanimously return death recommendations, and thus, it is probable that life
sentences will be imposed. Clearly, Walton is attempting to circumvent this
Court’s retroactivity holding in Asay V when he asserts that Hurst constitutes a
newly discovered fact and is applicable through a cumulative analysis. Thus we
conclude that Walton’s attempt to shoehorn Hurst retroactivity through a newly
discovered evidence claim is meritless. Accordingly, we hold that the
postconviction court properly denied Walton’s motion.
Walton’s McCloud6 Claim
In Walton’s third successive postconviction motion he asserted that he is
entitled to a life sentence because his sentences of death are disproportionate to the
life sentences imposed on all of his codefendants. The postconviction court found
that the life sentences of Walton’s two other codefendants, Terry Van Royal, Jr.
and Jeffrey McCoy, were irrelevant with regard to proportionality because Van
Royal was resentenced to life based on a legal error by the trial judge and McCoy
received a life sentence as part of a negotiated plea. Walton now contends that the
postconviction court’s reasoning is contrary to McCloud. However, McCloud is
inapposite because Walton’s codefendants received lesser sentences due to purely
legal reasons. See Walton II, 547 So. 2d at 623; see also Jeffries v. State, 222 So.
6. McCloud v. State, 208 So. 3d 668 (Fla. 2016).
- 11 - 3d 538, 547 (Fla. 2017) (“[W]e have historically refused to review the relative
culpability of codefendants when a codefendant pleads guilty and receives a lesser
sentence as a result.”); Farina v. State, 937 So. 2d 612 (Fla. 2006) (holding that the
life sentence of a codefendant was irrelevant because the basis for the codefendant
receiving the life sentence was purely legal and had no connection to the nature or
circumstances of the crime or to the defendant’s character or record). Moreover,
this Court previously directly addressed Walton’s culpability compared to Van
Royal, finding that “Walton was indeed more culpable than Van Royal.” Walton
V, 847 So. 2d at 449.
Walton’s Hurst Claims
Walton also raises several Hurst claims,7 which we reject. This Court has
held that Hurst does not apply retroactively to capital defendants whose sentences
were final before the United States Supreme Court issued its opinion in Ring. Asay
V, 210 So. 3d at 7-14. In Hitchcock, this Court affirmed its decision in Asay V,
denying the retroactive application of Hurst v. Florida, as interpreted in Hurst, to
defendants whose death sentences were final when the United States Supreme
Court decided Ring. Hitchcock, 226 So. 3d at 217; see also Zack, 228 So. 3d at 47-
7. Walton claims that: (1) his death sentences violate the Eighth Amendment and the Florida Constitution; and (2) the retroactivity rulings in Asay V and Mosley v. State, 209 So. 3d 1248 (Fla. 2016), violate the Eighth Amendment principles announced in Furman v. Georgia, 408 U.S. 238 (1972).
- 12 - 48; Marshall, 226 So. 3d at 211; Willacy, 2017 WL 1033679, at *1; Lambrix v.
State, 227 So. 3d 112, 113 (Fla.), cert. denied, 138 S. Ct. 312 (2017); Bogle, 213
So. 3d at 855; Gaskin, 218 So. 3d at 401. Walton is among those defendants
whose death sentences became final before Ring.
This Court has previously rejected Eighth Amendment Hurst claims. See
Hannon v. State, 228 So. 3d 505, 513 (Fla.), cert. denied, 138 S. Ct. 441 (2017);
Lambrix, 227 So. 3d at 113; Asay v. State (Asay VI), 224 So. 3d 695, 702-03 (Fla.
2017); Hitchcock, 226 So. 3d at 216-17. Walton disagrees with the retroactivity
cutoff that this Court set in Asay V; however, that decision is final.8
Walton’s Habeas Claim
Walton’s petition sought relief pursuant to the Supreme Court’s decision in
Hurst v. Florida, and our decision on remand in Hurst. This Court stayed
Walton’s appeal pending the disposition of Hitchcock. After this Court decided
Hitchcock, Walton responded to this Court’s order to show cause arguing why
Hitchcock should not be dispositive in this case. After reviewing Walton’s
response to the order to show cause, as well as the State’s arguments in reply, we
conclude that Walton is not entitled to relief. Walton’s death sentences became
final in 1990. Walton III, 493 U.S. 1036. Thus Hurst does not apply retroactively
8. The Supreme Court denied certiorari review on August 24, 2017. See Asay v. Florida, 138 S. Ct. 41, 41-42 (2017).
- 13 - to Walton’s sentences of death. See Hitchcock, 226 So. 3d at 217. Accordingly,
we deny Walton’s petition for habeas relief.
CONCLUSION
For the reasons discussed, we affirm the postconviction court’s denial of
Walton’s motion for postconviction relief and deny his petition for writ of habeas
corpus.
It is so ordered.
LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur. PARIENTE and CANADY, JJ., concur in result. QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County, W. Douglas Baird, Senior Judge – Case No. 521983CF000630XXXXNO And an Original Proceeding – Habeas Corpus
Neal Dupree, Capital Collateral Regional Counsel, and Bryan E. Martinez, Staff Attorney, Southern Region, Fort Lauderdale, Florida; and Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
- 14 -