Supreme Court of Florida ____________
No. SC19-1624 ____________
KIM JACKSON, Appellant,
vs.
STATE OF FLORIDA, Appellee.
____________
No. SC21-502 ____________
KIM JACKSON, Petitioner,
RICKY D. DIXON, etc., Respondent.
June 30, 2022
PER CURIAM.
Kim Jackson appeals the circuit court’s order denying
numerous guilt-phase claims raised in his postconviction motion
filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. 1 For the reasons that follow,
we affirm the circuit court’s order and deny the habeas petition.
I. BACKGROUND
Debra Pearce was brutally stabbed to death at her home in
Jacksonville. Responding law enforcement found Pearce’s bloody
and bruised body face-down in the kitchen.
Michael Knox, a crime scene investigator, observed that Pearce
had been stabbed multiple times in the neck and chest. One stab
wound was partially covered by a five-inch-long knife that remained
plunged in Pearce’s chest. Upon further examination, Knox
discovered a detached hair on the back of Pearce’s right calf and a
small folding pocketknife under her body. Both items were later
submitted to the Florida Department of Law Enforcement (FDLE) for
DNA testing. Additionally, Knox noticed a bloody fingerprint on the
kitchen sink, which was located right above Pearce’s body. Knox
processed and photographed the fingerprint, and law enforcement
removed the sink from the home.
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const; see also Smith v. State, 330 So. 3d 867, 875 n.2 (Fla. 2021) (determining that Court has jurisdiction despite circuit court ordering a new penalty phase in postconviction proceeding).
-2- Law enforcement also sought to find witnesses, but none had
observed the crime or the events surrounding it. Consequently, the
investigation, led by Detective Craig Waldrup, focused on the
physical evidence.
Michelle Royal, a fingerprint examiner with the Jacksonville
Sheriff’s Office, analyzed the sink fingerprint and determined that it
was not of value, meaning that it would not be useful in identifying
a suspect. Detective Waldrup sought additional analysis from
another sheriff’s office. However, that further analysis did not
result in any leads.
Meanwhile, almost two years after the murder, Leigh Clark—a
DNA analyst for the FDLE—tested the hair found on Pearce’s leg.
She extracted a full DNA profile from it and later uploaded the
profile to the CODIS2 database. The submitted profile matched the
known DNA profile of Jackson, who was then serving a lengthy
prison sentence in Georgia.
2. CODIS stands for “Combined DNA Index System[,] [which] connects DNA laboratories at the local, state, and national level.” Maryland v. King, 569 U.S. 435, 444 (2013).
-3- Having learned of the DNA match, Detective Waldrup then
asked the FBI to compare Jackson’s known prints with the sink
fingerprint. An FBI analyst concluded that the fingerprint matched
Jackson’s right ring finger.
Based on these two leads, Detective Waldrup interviewed
Jackson at the Georgia prison where he was housed. During the
interview, Detective Waldrup asked Jackson if he knew Pearce or
had ever been to her house. In conjunction with these questions,
Detective Waldrup showed him pictures of Pearce, her home, and
the surrounding area. Jackson denied ever knowing or seeing
Pearce. Nor, according to him, had he ever been to the home.
Jackson would later concede that these statements were false.
Ultimately, almost four years after the murder, the State
charged Jackson with first-degree murder in connection with
Pearce’s death, later filing a notice of intent to seek the death
penalty. Though Jackson challenged the lawfulness of the death
penalty, he did not seek dismissal of the first-degree-murder
charge.
At Jackson’s trial, the State called a number of witnesses,
including Detective Waldrup, Knox, Clark, and two fingerprint
-4- experts. Clark testified that the detached hair found on Pearce’s leg
was a full marker match with Jackson’s known DNA. She further
opined that the hair was not naturally shed, briefly alluding to
“several published papers in the Journal of Forensic Sciences.” She
also gave testimony on the pocketknife, indicating that she obtained
a mixed profile from blood on it. Pearce was a contributor, but
Jackson was not. DNA samples were also obtained from inside
Pearce’s vehicle, specifically the steering wheel cover. As for a
mixed sample obtained from that cover, Clark indicated that
Jackson—as a male—could not be excluded as a minor contributor.
The State’s two fingerprint experts offered opinion testimony
on the sink fingerprint, both stating that it matched a known print
from Jackson’s right ring finger. Moreover, both agreed that
Jackson’s right ring finger was coated in something wet at the time
he created the print on the sink. When asked on cross-examination
whether blood could preserve a preexisting print, one of the experts
opined that she had not observed such a situation “in her training
and experience.”
After the State rested, Jackson requested a judgment of
acquittal. He argued that the State presented a wholly
-5- circumstantial case, which failed to rebut his reasonable hypothesis
of innocence—namely that he was not present for the murder and
that his hair had been become detached while he was inside
Pearce’s home prior to the murder and later came to rest on her leg.
Rejecting that argument, “[t]he trial court ruled the evidence, when
viewed in the light most favorable to the State, negated all
reasonable hypotheses of innocence, and denied the motion.”
Jackson v. State, 180 So. 3d 938, 950 (Fla. 2015). In particular, the
court relied on the evidence of the bloody fingerprint as establishing
Jackson’s presence in the home for the murder.
Jackson then presented his case, which primarily consisted of
evidence in support of an alibi defense. Jackson and four other
witnesses—his father, his wife (Deborah Jackson), his sister (Penny
Williams), and a friend (Rose Franklin)—testified that Jackson had
been in Georgia celebrating his birthday during the period of time
encompassing the murder. In addition, Jackson sought to explain
the incriminating answers given to Detective Waldrup during the
prison interview. Jackson also called as a witness Michelle Royal,
the Jacksonville Sheriff’s Office analyst who determined the sink
fingerprint to be of no value. On cross-examination, she testified
-6- that “even prints of no value can be used to exclude suspects, . . .
Jackson could not be excluded as the individual who left the sink
fingerprint, and . . . similarities existed between the sink fingerprint
and the known print of Jackson.” Id. at 944.
Ultimately, the jury found Jackson guilty of first-degree
murder, and, following the penalty phase, it recommended a
sentence of death by a vote of 8 to 4. Accepting that
recommendation, the trial court sentenced Jackson to death.
Jackson appealed, raising five issues for our review.3
Rejecting his arguments, we affirmed on all issues. Id. at 949-64.
Jackson then filed a petition for writ of certiorari in the United
States Supreme Court, which was denied. Jackson v. Florida, 578
U.S. 979 (2016).
3. Jackson argued that (1) the State presented insufficient evidence to establish that (a) he killed Pearce, (b) the murder was premeditated, or (c) he was an active participant in the murder; (2) the prosecutor made improper comments during closing argument rising to the level of fundamental error; (3) the trial court erred in finding that the heinous, atrocious, or cruel aggravator had been proven; (4) his death sentence was disproportionate; and (5) Ring v. Arizona, 536 U.S. 584 (2002), rendered Florida’s death-penalty statute constitutionally infirm.
-7- Less than a year later, Jackson filed a postconviction motion
in circuit court, which, as later amended, raised over twenty claims
for relief. The circuit court ruled that Jackson was entitled to a new
penalty phase based on Hurst v. State, 4 granted an evidentiary
hearing on six guilt-phase claims, 5 and denied or reserved ruling on
the balance of the claims. After the hearing, the court entered an
order denying the pending claims, and, consistent with its prior
ruling, vacated Jackson’s death sentence under Hurst. Jackson
now appeals and seeks a writ of habeas corpus.
4. Hurst v. State, 202 So. 3d 40 (Fla. 2016).
5. Those claims included the following: trial counsel was ineffective in investigating and challenging the State’s DNA evidence (claim seven); trial counsel was ineffective in investigating the fingerprint evidence (claim eight); trial counsel was ineffective for failing to adequately prepare Jackson to testify at trial (claim ten); trial counsel was ineffective for failing to file a pretrial motion to dismiss based on the preindictment and prearrest delays (claim eleven); trial counsel was ineffective for failing to properly and timely investigate the alibi defense (claim twelve); trial counsel was ineffective for failing to properly prepare Deborah Jackson (Jackson’s wife) for her trial testimony (subclaim of claim twelve).
-8- II. ANALYSIS
A. Postconviction Appeal
Jackson argues that the circuit court erred in denying his
claims of ineffective assistance of trial counsel. We disagree and
explain below why his arguments lack merit.
Ineffectiveness claims are governed by the standard set forth
by the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). See Nelson v. State, 73 So. 3d 77, 84 (Fla. 2011). We have
recently described that standard as follows:
Under Strickland v. Washington, a defendant alleging that he received ineffective assistance of counsel has the burden to demonstrate that counsel’s performance fell below an objective standard of reasonableness. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. “Both prongs of the Strickland test present mixed questions of law and fact.” Johnson v. State, 135 So. 3d 1002, 1013 (Fla. 2014). “In reviewing a trial court’s ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts.” Id. (quoting Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006)).
As to the first prong, the defendant must establish “that counsel made errors so serious that counsel was
-9- not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A court reviewing the second prong must determine whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.
Smith, 330 So. 3d at 875 (some citations omitted).
We now consider each ineffectiveness claim as ruled on by the
circuit court.
1. Fingerprint Evidence
claim that counsel was ineffective in challenging the State’s
fingerprint evidence. According to him, counsel was ineffective for
presenting inconsistent arguments to the jury as to the fingerprint
evidence and for not objecting to certain testimony from the State’s
fingerprint experts and to the prosecutor’s improper closing
argument denigrating his fingerprint expert, Michelle Royal. His
arguments lack merit.
- 10 - As for the inconsistent-theories argument, the State properly
observes that Jackson failed to raise it in his postconviction motion.
Accordingly, he has failed to timely raise this specific argument,
and it has been waived. State v. Poole, 297 So. 3d 487, 494 (Fla.
2020) (failure to timely raise specific argument results in waiver).
However, even had this argument been properly preserved, it would
not support relief. Trial counsel conceded during opening
statement that the sink fingerprint was Jackson’s but later called
Royal who indicated that the print had no value. Though the
concession might be at odds to some extent with portions of Royal’s
testimony, Jackson has cited no case law which holds counsel
deficient merely for presenting alternative theories to the jury. And
we decline to so hold here.
Jackson’s failure-to-make-objection argument fares no better.
During their testimony, the State’s fingerprint experts made various
references to nontestifying examiners to which trial counsel did not
object. According to Jackson, counsel should have objected on the
ground that such testimony was irrelevant, improperly bolstered in-
court testimony, and violated his confrontation rights under the
Sixth Amendment. However, Jackson’s argument is undeveloped
- 11 - and conclusory. See Sheppard v. State, 47 Fla. L. Weekly S65, S70-
S71 (Fla. Mar. 10, 2022) (affirming on subclaim where appellant
presented vague and conclusory argument (citing Hannon v. State,
941 So. 2d 1109, 1139 (Fla. 2006))); Rivera v. State, 260 So. 3d 920,
929 (Fla. 2018). Thus, Jackson has not demonstrated entitlement
to relief based on this argument.
As for the prosecutor’s criticism of Royal—including referring
to her as “old school”—we conclude that Jackson has failed to
establish deficiency. Specifically, he has not demonstrated that
counsel lacked a reasonable strategic reason for not objecting.
Notably, as part of the comments on Royal, the prosecutor praised
Royal in certain respects. Thus, viewing the comments in their
entirety, counsel may have determined that the negative aspects
were not so unfavorable as to warrant an objection. Sheppard, 47
Fla. L. Weekly at S68 (recognizing that defendant bears burden to
“overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial
strategy’ ” (quoting Strickland, 466 U.S. at 689)).
- 12 - In sum, Jackson has not demonstrated entitlement to relief as
to this claim. 6
2. Preparation to Testify
claim that counsel was ineffective for failing to properly prepare him
to testify at trial. According to Jackson, his attorneys gave him
conflicting advice on whether he should or should not testify, failed
to warn him about the hazard of appearing selfish and callous
toward Pearce, and miscalculated the number of felonies for which
he had been convicted. Jackson is not entitled to relief as to this
claim either.
For starters, Jackson has failed to preserve his conflicting-
advice argument as he did not seek relief or assert ineffectiveness
on this basis in his motion below. See Poole, 297 So. 3d at 494.
6. Jackson appears to suggest that defense counsel was deficient for not presenting additional evidence undermining the State’s proof that he was the source of the sink fingerprint. To the extent he is making this argument, it has no merit. At the hearing, Jackson presented no evidence undermining that proof. Accordingly, he has failed to meet his evidentiary burden under Strickland. See Lynch v. State, 2 So. 3d 47, 70 (Fla. 2008) (“[T]he burden is on the defendant to affirmatively satisfy both prongs of the Strickland framework.”).
- 13 - But, even if the issue had been preserved, it would not support
relief. Jackson has supplied no authority requiring all attorneys on
a defense team to be in agreement on the defendant’s decision to
testify. See Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997)
(“[T]he ultimate decision regarding whether to testify belongs to the
defendant.”). Here, counsel offered sensible views on the benefits
and drawbacks of testifying—giving Jackson the benefit of both
perspectives but leaving the ultimate decision to him. See Brant v.
State, 197 So. 3d 1051, 1076 (Fla. 2016) (“Trial counsel did not
perform deficiently by explaining all of Brant’s options to him,
including the positives and the negatives of those options, and then
allowing Brant to make the decision on his own.”). We find no
deficient performance in so doing.
Jackson’s failure-to-advise argument fares no better.
Specifically, he argues that counsel failed to instruct him to avoid
looking selfish and insensitive before the jury. However, he
identifies no case finding counsel deficient for failing to offer advice
on something that is quite obvious, i.e., that it may be beneficial to
present oneself positively to the jury. Perhaps more importantly,
Jackson improperly discounts the advice counsel actually gave to
- 14 - him. Specifically, counsel offered advice on the following topics: (1)
the testimony he should give, (2) subjects to be avoided—like past
crimes, (3) “the specifics of defense[s],” and (4) the need to be
honest and answer all questions unless an objection has been
sustained. Given the facts of this case, we find that counsel’s
advice meets objective standards of reasonable performance. See
Taylor v. State, 3 So. 3d 986, 996-97 (Fla. 2009).
Jackson’s wrong-number-of-convictions argument also fails.
At trial, Jackson testified to having been convicted of five felonies.
He correctly notes—consistent with the State’s concession just prior
to the penalty phase—that the actual number of felonies was four.
However, Strickland does not provide relief for all errors or
omissions. See Patrick v. State, 302 So. 3d 734, 740 (Fla. 2020).
Rather, a defendant must demonstrate a “serious” error or
omission, meaning an error showing that the defendant’s counsel
was not functioning as the counsel guaranteed by the Sixth
Amendment. Id. Overcalculating—by one—the number of felonies
was an error. But it was not a serious one in light of the fact that
Jackson had four other felony convictions. The difference for
impeachment purposes of five felonies versus four is not significant.
- 15 - What is more, Jackson’s credibility had already been sharply
undermined by his dishonesty with Detective Waldrup during the
interview. Thus, based on these specific facts, we conclude that
this miscalculation was not “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687.
Finally, to the extent Jackson is arguing that one of his
attorneys persuaded him to testify against his better judgment, that
argument is inconsistent with the record. At trial, during a lengthy
colloquy, Jackson affirmed to the court that he had sufficient time
to speak with his attorneys on the issue of testifying. He indicated
that he wanted to testify, and he made that decision freely,
voluntarily, and without coercion. See Reynolds v. State, 99 So. 3d
459, 485 (Fla. 2012) (relying on transcript to reject claim that court
failed to adequately question defendant on his decision to testify);
Johnson v. State, 22 So. 3d 840, 844 (Fla. 1st DCA 2009) (finding
record refuted claim that counsel forced defendant to accept plea
deal).
Accordingly, Jackson has not shown error in the circuit
court’s denial of this claim.
- 16 - 3. Alibi
Jackson also challenges the circuit court’s denial of his claim
that counsel was deficient for failing to properly investigate and
present his alibi defense. We affirm that ruling.
Jackson first contends that counsel was ineffective for failing
to bring out additional facts from Penny Williams. At trial, Penny
Williams gave testimony in support of Jackson’s alibi defense, i.e.,
that Jackson was celebrating his birthday in Georgia with his family
when the murder occurred. Later, at the evidentiary hearing,
Williams revealed that she had just lost her job and that the loss of
employment solidified in her mind that this birthday visit was in
2004—the same year in which Pearce was murdered. According to
Jackson, failing to bring out that evidence constitutes deficient
performance. This subclaim lacks merit for two reasons.
First, Jackson failed to timely raise this argument below.
Accordingly, this specific argument has not been preserved for
appeal. See Poole, 297 So. 3d at 494. Second, the argument fails
on the merits. The State properly observes that Penny Williams did
provide a plausible real-world reason for recalling Jackson’s trip to
Georgia and the record supports the State’s point. When asked
- 17 - during trial if Williams was certain she saw Jackson that weekend
in 2004, she stated, “Yes, cause I seen his -- he brought his
daughter to see me. That was the only time I could see her . . . .”
In light of this evidence presented at trial, Jackson cannot show
that defense counsel was deficient for refraining from introducing
additional, comparable evidence. See Wheeler v. State, 124 So. 3d
865, 881 (Fla. 2013).
Jackson further claims that counsel was ineffective for failing
to bring out the fact that his birthday in 2004 was his last one
before the Georgia incarceration. This fact, according to him, would
have further bolstered his alibi defense.
At trial, the alibi witnesses avoided this topic, doing so at the
urging of counsel. Later, at the evidentiary hearing, counsel
provided a strategic reason for deciding to avoid the topic. Defense
counsel testified that he did not want to highlight the fact that
Jackson was serving a lengthy sentence for a serious crime. We
agree with the circuit court that this strategic decision was
reasonable under the circumstances. Of note, Jackson committed
this serious crime around the same time as the murders. We
- 18 - further stress that avoiding calling attention to his incarceration did
not preclude the presentation of a coherent alibi defense.
Finally, Jackson contends that counsel’s 17-month delay in
investigating the alibi defense was patently unreasonable. That
unreasonable delay, he says, resulted in the loss of evidence
exonerating him. However, as the circuit court properly noted,
Jackson only speculates as to what evidence might have been lost
as a result of the delay. Thus, Jackson has failed to carry his
evidentiary burden on this point and the circuit court correctly
rejected this claim. See Lynch, 2 So. 3d at 70.
4. Deborah Jackson
In addition, Jackson argues that the circuit court erred in
denying his claim that counsel was deficient for failing to properly
prepare Deborah Jackson to testify at trial and for failing to bring
out testimony that would have ameliorated the effect of
impeachment evidence. We disagree.
At the evidentiary hearing, Deborah Jackson testified that
counsel spent only 15 minutes with her in preparation for her trial
testimony. In Jackson’s view, that amount of time was simply too
short to meaningfully prepare her. However, Jackson has
- 19 - marshalled no case showing that 15 minutes of trial preparation
necessarily falls below objective standards of reasonable
performance in all circumstances. And, based on our review of the
record, we conclude that Jackson has not demonstrated that the
advice given was unreasonable under Strickland. For one thing,
Deborah Jackson’s trial testimony involved telling the jury a
straightforward account as to Jackson’s whereabouts during the
relevant time frame. For another, Jackson does not identify what
additional testimony she could have given if counsel had simply
spent more time with her or given her more thorough advice.
Jackson also cannot demonstrate error in the court’s rejection
of his subclaim pertaining to counsel’s not bringing out
ameliorating circumstances surrounding Deborah Jackson’s bad-
check conviction. That conviction was used to impeach her during
trial. At the evidentiary hearing, Deborah Jackson testified that the
conviction resulted from conduct occurring over 15 years before the
trial. She also indicated that she wrote the bad check during a
difficult time in her life and did so without any fraudulent intent.
We agree with the circuit court that Jackson failed to show
deficient performance or prejudice. Though Jackson is likely
- 20 - correct that defense counsel could have brought out some
circumstances that he deems ameliorating, the State properly notes
that it would have been able on recross-examination to emphasize
the elements of the crime—including the mens rea of “intentional
dishonesty.” Cf. Wilcox v. State, 143 So. 3d 359, 373 (Fla. 2014)
(noting that prosecutor may refute “false impression” witness gives
about conviction (citing Fotopoulos v. State, 608 So. 2d 784, 791
(Fla.1992))); Rogers v. State, 964 So. 2d 221, 223 (Fla. 4th DCA
2007) (discussing circumstances when prosecutor may bring out
details about crime). Thus, if counsel had done what Jackson
claims should have been done, the jury would likely have heard not
only ameliorating circumstances but also additional evidence
undermining her credibility. In light of the strong possibility that
the State would have brought out additional evidence damaging her
credibility, Jackson cannot show that “no competent counsel”
would have refrained from eliciting the ameliorating evidence under
the circumstances of this case. See Hammond v. Hall, 586 F.3d
1289, 1324 (11th Cir. 2009).
Thus, Jackson is not entitled to relief as to this claim.
- 21 - 5. Motion to Dismiss Charges
claim that trial counsel was deficient for failing to file a motion to
dismiss the murder charge on the basis of prosecutorial delay. In
denying this claim, the circuit court ruled that a motion to dismiss
for pretrial delay would have been meritless. We agree that Jackson
is not entitled to relief. In so deciding, we reconsider our case law
on the due process standard for preindictment delay.
In Rogers v. State, 511 So. 2d 526, 531 (Fla. 1987), we
adopted, without significant discussion, a balancing test to
determine if preindictment delay violated due process. That test
traced back to the Fifth Circuit’s decision in United States v.
Townley, 665 F.2d 579 (5th Cir.1982)). We described the Townley
test as follows:
When a defendant asserts a due process violation based on preindictment delay, he bears the initial burden of showing actual prejudice. . . . If the defendant meets this initial burden, the court then must balance the demonstrable reasons for delay against the gravity of the particular prejudice on a case-by-case basis. The outcome turns on whether the delay violates the fundamental conception of justice, decency[,] and fair play embodied in the Bill of Rights and fourteenth amendment.
- 22 - Rogers, 511 So. 2d at 531 (citing Townley, 665 F.2d at 581-82).
Since we decided Rogers, the Fifth Circuit has receded from
the Townley balancing test. United States v. Crouch, 84 F.3d 1497
(5th Cir. 1996). In doing so, the Fifth Circuit cogently explained the
flaws in the Townley balancing test, reasoning:
The Townley test purports to weigh or balance the extent or degree of the actual prejudice against the extent to which the government’s “good faith reasons” for the delay deviate from what the court believes to be appropriate. However, what this test seeks to do is to compare the incomparable. The items to be placed on either side of the balance (imprecise in themselves) are wholly different from each other and have no possible common denominator that would allow determination of which “weighs” the most. Not only is there no scale or conversion table to tell us whether eighty percent of minimally adequate prosecutorial and investigative staffing is outweighed by a low-medium amount of actual prejudice, there are no recognized general standards or principles to aid us in making that determination and virtually no body of precedent or historic practice to look to for guidance. Inevitably, then, a “length of the Chancellor’s foot” sort of resolution will ensue and judges will necessarily define due process in each such weighing by their own “ ‘personal and private notions’ of fairness,” contrary to the admonition of [United States v. Lovasco, 431 U.S. 783 (1977)].
Apart from the above difficulty, grounding a due process violation on the basis of good faith but inadequate, ineffective, or insufficient governmental personnel or management leading to preindictment delay runs counter to two basic constitutional principles. In the first place, “[h]istorically, this guarantee of due
- 23 - process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property,” Daniels v. Williams, 474 U.S. 327, 331 (1986), and hence “the Due Process Clause . . . is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property.” Davidson v. Cannon, 474 U.S. 344, 347 (1986). Contrary to these principles, however, the Townley test would find a due process violation where the government acted in good faith and did not deliberately seek to prejudice the party ultimately accused.
Finally, serious separation of powers concerns are implicated. Here, for example, the panel concluded that the reasons for the delay—“lack of manpower and the low priority which this investigation was assigned”—were “insufficient to outweigh the actual prejudice to Crouch and Frye.” [United States v. Crouch, 51 F.3d 480, 483 (5th Cir. 1995) (vacated panel decision)]. Finding these reasons “insufficient” is in substance determining that greater manpower should generally have been allocated to investigation and prosecution in that jurisdiction, and that a higher priority should have been assigned to this particular investigation. Yet those decisions are ones essentially committed to the legislative and executive branches, and the case for judicial second guessing is particularly weak where it is directed at preindictment conduct and is supported not by any specific constitutional guaranty or by any long-established tradition of judicial oversight, but only by the general contours of the due process clause.
Crouch, 84 F.3d at 1512-13 (footnotes omitted) (some citations
omitted).
For additional support, the Fifth Circuit looked to the United
States Supreme Court’s decision in Arizona v. Youngblood, 488 U.S.
- 24 - 51, 58 (1988) (holding in related context of destruction of evidence
that due process is not violated unless loss of evidence resulted
from bad faith on part of police). Crouch, 84 F.3d at 1511, 1513
n.17. The Fifth Circuit further observed that its disapproval of
Townley was consistent with the majority rule in the federal circuit
courts. Id. at 1511.
Based on these persuasive justifications, we conclude that the
Rogers balancing test is clearly erroneous. Having so concluded, we
now consider whether there is any reason for us not to recede from
it. See Poole, 297 So. 3d at 507 (providing stare decisis framework).7
Jackson has not made that showing. He does not claim to
have relied on the Rogers balancing test at all. See id. (“The critical
consideration ordinarily will be reliance.”); cf. State v. Maisonet-
Maldonado, 308 So. 3d 63, 69-70 (Fla. 2020) (noting that defendant
did not claim to have relied on rule of criminal liability from which
Court was receding). Instead, Jackson claims that the Rogers
balancing test has been workable for decades. Even if that were so,
7. We summarily reject Jackson’s argument that the Poole stare decisis framework does not apply.
- 25 - we conclude that this reason alone is insufficient for retaining the
clearly erroneous balancing test.
Thus, based on the analysis above, we recede from the Rogers
balancing test. We now align ourselves with the majority of federal
circuit courts and hold that a due process claim for preindictment
delay requires a showing of substantial prejudice to the defendant
and bad faith on the part of the State. E.g., United States v. Stokes,
124 F.3d 39, 47 (1st Cir. 1997); United States v. Stierwalt, 16 F.3d
282, 285 (8th Cir. 1994); United States v. Foxman, 87 F.3d 1220,
1223 (11th Cir. 1996).
Application of this standard here supports the circuit court’s
denial of Jackson’s claim. There is simply no evidence in the record
that the length of time from the murder to the indictment was the
product of bad faith on the part of the State. And Jackson does not
claim otherwise. Accordingly, without evidence of bad faith,
Jackson cannot establish a due process violation for preindictment
delay; and, as a consequence, he cannot establish the prejudice
- 26 - necessary to succeed on an ineffectiveness claim. See Lockhart v.
Fretwell, 506 U.S. 364, 369-72 (1993).8
6. DNA Evidence
Jackson also argues that he is entitled to a new trial because his
counsel was deficient in multiple respects in investigating and
challenging the State’s DNA evidence. He is wrong.
At trial, Clark testified that the DNA profile developed from the
detached hair on Pearce’s leg was a full marker match to Jackson’s
known DNA, that the hair had not been naturally shed based on the
fact that she was able to develop a full profile from it, and that
Jackson could not be excluded as a minor donor to a mixed profile
recovered from the steering wheel cover in Pearce’s van.
Later, at the evidentiary hearing, Jackson presented the
testimony of two DNA experts to demonstrate that trial counsel was
ineffective in challenging Clark’s trial testimony. Both experts
testified that Clark did not fully comply with all FDLE protocols as
8. We reject Jackson’s assertion that we must remand to the circuit court so that he has an opportunity to develop evidence pertaining to the bad-faith requirement. Even under the former standard in Rogers, Jackson had reason to introduce evidence of bad faith, but he failed to do so.
- 27 - to certain samples. 9 One expert asserted that Jackson should have
been excluded as a possible source of the DNA in the van. That
expert also opined that Clark was wrong to say that a full DNA
profile could not be developed from a naturally shed hair. That
expert also posited several theories as to how the detached hair
could have innocently come to rest on Pearce’s leg after she was
killed.
The circuit court denied Jackson’s DNA-based claim on lack-
of-prejudice grounds. We agree that Jackson cannot demonstrate
prejudice and do not address the deficiency prong except to say that
Jackson failed to prove that counsel was deficient for not objecting
to Clark’s reference to the published papers and for not presenting
expert testimony on possible theories of hair transference. 10
9. Those samples did not include the DNA recovered from the detached hair.
10. Clark’s reference to the published papers was brief and not particularly prejudicial. See Hubbard v. Haley, 317 F.3d 1245, 1259 (11th Cir. 2003) (“[D]efense counsel, in defending their client’s interests, need not urge every conceivable objection the law would provide.”). As for the additional theories of hair transfer, we find that the theories advanced at the evidentiary hearing were not beyond the ordinary understanding of jurors. Thus, no expert was needed to convey them to the jury. See Mitchell v. State, 965 So. 2d 246, 251 (Fla. 4th DCA 2007) (“Expert testimony should be
- 28 - Jackson’s postconviction experts did not undermine Clark’s
primary conclusions. Those conclusions were that the detached
hair on the back of Pearce’s leg was Jackson’s and that the hair was
not naturally shed. At the evidentiary hearing, both of Jackson’s
experts essentially conceded the accuracy of the first conclusion.
And neither expert provided any testimony that the amount of DNA
extracted from the hair at issue could come from a naturally shed
hair.
Additionally, Jackson’s expert testimony—that he should be
excluded as a minor donor to the mixed sample in the van—does
not help him. Of note, the steering wheel DNA evidence was not a
key piece of evidence for the State. Indeed, the jury simply heard
that as a male, Jackson could not be excluded as a possible
contributor to the steering wheel sample. The more damaging
aspect of the van-related evidence was its location. Several weeks
after the murder, police found the van within a mile and a half of
Jackson’s residence. And, even if Jackson should have been
excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts.”).
- 29 - excluded as a contributor to the steering wheel DNA, that would not
undermine Clark’s two primary conclusions as to the detached hair.
Finally, the hair DNA evidence was not the only proof of
Jackson’s guilt. Jackson left a bloody fingerprint on the kitchen
sink. According to the trial evidence, the nature of the print
demonstrates that Jackson had blood on his finger when he
touched the sink. That evidence establishes Jackson’s presence in
Pearce’s home at the time of the murder. Additionally, during his
prison interview with Detective Waldrup, Jackson lied about not
knowing the victim and falsely indicated that he had never been in
her home. That constitutes evidence of a guilty mind. See
Hayward v. State, 24 So. 3d 17, 39 (Fla. 2009) (“Evidence of
conduct or speech of the accused which demonstrates a
consciousness of guilt is relevant since it supplies the basis for an
inference that the accused is guilty of the offense.”); United States v.
Holbert, 578 F.2d 128, 129 (5th Cir. 1978) (“[F]alse exculpatory
statements may be used . . . as substantive evidence tending to
prove guilt.”). And, as noted above, Pearce’s vehicle was found near
Jackson’s residence several weeks after the murder.
- 30 - In light of the hair DNA evidence (which Jackson has not
undermined) and the existence of other substantial evidence
connecting Jackson to the crime, we hold that Jackson failed to
demonstrate prejudice. Accordingly, the circuit court properly
denied this claim. See Deparvine v. State, 146 So. 3d 1071, 1102-
03 (Fla. 2014) (resolving Strickland issue on lack-of-prejudice
grounds without analyzing performance prong).
7. Cumulative Prejudice
Finally, Jackson argues that the circuit court erred in denying
his claim that the numerous alleged deficiencies of counsel
warranted a new guilt phase. Where multiple instances of deficient
performance are proven or assumed, we “consider the impact of
the[] errors cumulatively to determine whether [the defendant] has
established prejudice.” Brown v. State, 304 So. 3d 243, 258 (Fla.
2020) (second alteration in original) (quoting Sparre v. State, 289
So. 3d 839, 847 (Fla. 2019)). We rejected Jackson’s arguments of
deficient performance as to all but two claims. For those two
claims, we assumed deficient performance but ultimately found no
prejudice. Even considering the combined effect of the assumed
- 31 - deficient performance, we find that Jackson cannot establish
prejudice. Accordingly, the circuit court properly denied this claim.
B. Habeas Petition
In his habeas petition, Jackson contends that appellate
counsel rendered deficient performance on direct appeal in failing to
argue all of the instances of improper (but unobjected-to)
prosecutorial comments. 11 Jackson is not entitled to habeas relief.
“In general, claims of ineffective assistance of appellate
counsel are properly presented in a petition for writ of habeas
corpus[.]” Brown, 304 So. 3d at 278 (citing Baker v. State, 214 So.
3d 530, 536 (Fla. 2017); Wickham v. State, 124 So. 3d 841, 863
(Fla. 2013)). “The standard for a claim of ineffective assistance of
appellate counsel mirrors the Strickland standard for ineffective
assistance of trial counsel: the petitioner must demonstrate
deficient performance and resulting prejudice.” Hilton v. State, 326
So. 3d 640, 652 (Fla. 2021) (citing Frances v. State, 143 So. 3d 340,
358 (Fla. 2014)). Therefore, the petitioner must
11. As noted above, on direct appeal, appellate counsel challenged several prosecutorial comments. See Jackson, 180 So. 3d at 958. We held that, to the extent the comments were improper, they did not rise to the level of fundamental error. Id.
- 32 - establish [first, that] the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, [that] the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Brown, 304 So. 3d at 278 (alteration in original).
As relevant here, appellate counsel can be deficient for not
raising meritorious claims of fundamental error, and improper
prosecutorial comments can, in some limited circumstances, rise to
the level of fundamental error. Sheppard, 47 Fla. L. Weekly at S74.
To establish fundamental error, Jackson relies on two unobjected-to
comments. However, because those two comments do not rise to
the level of fundamental error on their own or in combination with
the comments challenged on direct appeal, Jackson has failed to
demonstrate deficient performance.
During the initial closing argument, the prosecutor stated:
Now, he can’t come in here and lie to you today about knowing her because he has to be able to explain his DNA and his fingerprints.
His DNA, his fingerprints on her body, in her blood is as good as a signed confession.
(Emphasis added.)
- 33 - As Jackson notes, his fingerprint was not found on Pearce’s
body; rather, it was found on the kitchen sink. Even accepting
Jackson’s interpretation that the statement did not entirely conform
to the facts, we find that appellate counsel was not deficient for
failing to urge reversal based on it. The statement was brief and the
only occasion where the prosecutor conflated the fingerprint and
DNA evidence. Accordingly, this comment appears to be an
inadvertent “slip of the tongue,” not an instance of prosecutorial
misconduct. See Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008).
Jackson is not entitled to habeas relief as to the second
unbriefed comment either. In rebuttal closing argument, the
prosecutor led off with the following remark:
Defense counsel said in jury selection that there are two sides to every story. And that’s true. There are two sides to every story. But there can be only one truth. . . . And while there are two halves to a basketball game, a blow-out is still a blow-out when the final score is determined. And this case, with its evidence being overwhelming, is a blowout. It is. The evidence of this man’s guilt is overwhelming.
We find this statement not impermissible. Fairly interpreted,
the prosecutor was merely giving his view of the strength of the
State’s case. See Dessaure v. State, 55 So. 3d 478, 487 (Fla. 2010);
- 34 - Dailey v. State, 965 So. 2d 38, 44 (Fla. 2007); Fountain v. State, 275
So. 3d 253, 255 (Fla. 1st DCA 2019); Easterly v. State, 22 So. 3d
807, 817 (Fla. 1st DCA 2009).
There is another reason why this comment was not improper.
We have stated that “[a] prosecutor’s comments are not improper
where they fall into the category of an ‘invited response’ by the
preceding argument of defense counsel concerning the same
subject.” Scott v. State, 66 So. 3d 923, 930 (Fla. 2011) (alteration in
original) (quoting Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006)).
Here, defense counsel characterized the State’s case against
Jackson as weak—asserting that the State produced absolutely no
evidence of his guilt. Accordingly, the prosecutor’s statement of a
contrary view was a fair reply to the defense’s closing argument.
Nevertheless, even if both challenged comments were
improper, they would not—on their own or in combination with the
remarks found (or assumed) improper on direct appeal—rise to the
level of fundamental error. See Alcegaire v. State, 326 So. 3d 656,
665 (Fla. 2021) (noting that unobjected-to comments rise to the
level of fundamental error only when those comments “reach[] down
into the validity of the trial itself to the extent that a verdict of guilty
- 35 - could not have been obtained without the[m]”). Both comments
were quite brief, not inflammatory, and not statements on the law
the jury would apply during deliberations. And, though the
fingerprint remark was factually inaccurate, we do not think that
this stray comment confused the jury given the state of the evidence
at trial. Thus, had appellate counsel pressed the arguments
advanced now, we would still have affirmed on the closing-
argument issue on direct appeal.
Accordingly, Jackson has failed to demonstrate ineffective
assistance of appellate counsel and is not entitled to a writ of
habeas corpus. See Brown, 304 So. 3d at 280 (denying habeas
relief “because appellate counsel was not ineffective for failing to
challenge on direct appeal unpreserved issues that do not amount
to fundamental error”).
III. CONCLUSION
For the reasons given above, we affirm the circuit court’s order
and deny Jackson’s habeas petition.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ. concur. LABARGA, J., concurs in result.
- 36 - NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County, James Hunt Daniel, Judge Case No. 162008CF010726AXXXMA And an Original Proceeding – Habeas Corpus
Robert S. Friedman, Capital Collateral Regional Counsel, Thomas Voracek and Karin L. Moore, Assistant Capital Collateral Regional Counsel, North Region, Tallahassee, Florida, and Stacy R. Biggart, Special Assistant Capital Collateral Regional Counsel, Gainesville, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, Florida,
for Appellee/Respondent
- 37 -