SC12-633 Initial Brief on the Merits

78 Pages·2012·0.45 MB·English

IN THE SUPREME COURT OF FLORIDA

JASON ANDREW SIMPSON,

Appellant,

v. Case No.: SC12-633
L.T. No.: 16-2002-CF-11026
STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT,
FOURTH JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA

INITIAL BRIEF OF APPELLANT JASON SIMPSON

Sonya Rudenstine John S. Mills
Florida Bar No. 711950 Florida Bar No. 0107719
[email protected] [email protected]
204 W. University Avenue, Suite 5 Andrew D. Manko
Gainesville, Florida 32601 Florida Bar No. 018853
[phone] [email protected]
[phone] facsimile [email protected] (secondary)
The Mills Firm, P.A.
203 North Gadsden Street, Suite 1A
Tallahassee, Florida 32301
[phone]
[phone] facsimile

Attorneys for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS ........................................................................................ iii
STATEMENT OF THE CASE AND OF THE FACTS ........................................... 1
Procedural History ........................................................................................... 1
Evidence Presented at Trial ............................................................................. 5
Direct Appeal .................................................................................................28
The Rule 3.853 Motion ..................................................................................32
The Rule 3.851 Motion ..................................................................................42
SUMMARY OF ARGUMENT ...............................................................................49
ARGUMENT ...........................................................................................................53
I. Little Archie‘s DNA Under Kimbler‘s Fingernails Would Be
Exculpatory. ........................................................................................55
II. Little Archie‘s or Smallwood‘s DNA or the Presence of the
DNA of Three or More People on the Clothing Allegedly Worn
by the Killer Would Be Exculpatory. ..................................................56
III. Little Archie‘s or Smallwood‘s DNA in Blood Spots on the
Socks Would Be Exculpatory. ............................................................61
IV. Little Archie‘s or Smallwood‘s DNA in Blood Collected from
Big Archie‘s Bedroom and Outside the Back Door Would Be
Exculpatory. ........................................................................................62
V. The Exculpating Nature of the Expected Test Results Would
Create a Reasonable Probability of Acquittal Despite the Other
Evidence of Guilt.................................................................................63
VI. Any Doubt on the Probability of Acquittal Will Be Eliminated
If Simpson Prevails on His Other Post-Conviction Claims. ...............68
CONCLUSION ........................................................................................................72
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CERTIFICATE OF SERVICE ................................................................................73
CERTIFICATE OF COMPLIANCE .......................................................................73

ii
TABLE OF CITATIONS
CASES

Ackerman v. State,
958 So. 2d 450 (Fla. 2d DCA 2007) .............................................................. 54
Brady v. Maryland,
373 U.S. 83 (1963)......................................................................................... 44
Bryant v. State,
901 So. 2d 393 (Fla. 5th DCA 2005) ............................................................. 54
Cole v. State,
895 So. 2d 398 (Fla. 2004) ............................................................................ 54
Dubose v. State,
No. 2D11-4121, 2012 WL 2053296 (Fla. 2d DCA June 8, 2012) ................ 54
Giglio v. United States,
405 U.S. 150 (1972)....................................................................................... 43
Hitchcock v. State,
866 So. 2d 23 (Fla. 2004) ........................................................................ 53, 54
Lott v. State,
931 So. 2d 807 (Fla. 2006) .............................................................................. 1
Ortiz v. State,
884 So. 2d 70 (Fla. 2d DCA 2004) ................................................................ 54
Overton v. State,
976 So. 2d 536 (Fla. 2007) ............................................................................ 60
Robinson v. State,
865 So. 2d 1259 (Fla. 2004) .......................................................................... 54
Schofield v. State,
861 So. 2d 1244 (Fla. 2d DCA 2003) .......................................... 56, 59, 61, 68
Simpson v. Florida,
130 S. Ct. 91 (2009) ......................................................................................... 2
iii
Simpson v. State,
3 So. 3d 1135 (Fla. 2009) .............................................................. 2, 29, 30, 31
State v. Keyes,
322 A.2d 615 (N.H. 1974) ............................................................................. 69
State v. Law,
559 So. 2d 187 (Fla. 1989) ............................................................................ 64
Willis v. Romano,
972 So. 2d 294 (Fla. 5th DCA 2008) ............................................................. 68

STATUTES, CONSTITUTIONAL
PROVISIONS, AND RULES OF COURT

§ 925.11, Fla. Stat. (2011) .................................................................................... 2, 32
Art. V, § 3(b)(1), Fla. Const. ...................................................................................... 1
Fla. R. Crim. P. 3.851 .......................................................................................passim
Fla. R. Crim. P. 3.853 .......................................................................................passim
Fla. R. Crim. P. 3.853(c)(5) ..................................................................................... 53
Fla. R. Crim. P. 3.853(f) ............................................................................................ 1
iv
STATEMENT OF THE CASE AND OF THE FACTS
Jason Simpson, a prisoner under sentence of death who has always
maintained his innocence, appeals the trial court‘s order denying his post-
conviction motion for DNA testing pursuant to Florida Rule of Criminal Procedure
3.853. Although Simpson also has several claims pending below under Florida
Rule of Criminal Procedure 3.851, this Court has appellate jurisdiction to
immediately review the denial of relief under Rule 3.853. Art. V, § 3(b)(1), Fla.
Const.; Fla. R. Crim. P. 3.853(f); Lott v. State, 931 So. 2d 807, 820 (Fla. 2006).
This appeal presents the question of whether the expected test results would
establish a reasonable probability of acquittal in this case.
Procedural History
On December 5, 2002, the grand jury indicted Simpson on two counts of
first-degree murder for the July 1999 brutal axe murders of a drug dealer named
Archie Crook, Sr., (―Big Archie‖) and his pregnant girlfriend, Kimberli Kimbler.
(DA1:22.)1 Four years later, in January 2007, the Circuit Court, Fourth Judicial
Circuit, in and for Duval County, Florida, Hon. Charles M. Arnold presiding,
conducted a six-day guilt-phase jury trial. (T.11:1-T.19:1734.)

1 References to the record on appeal in this case are cited as
R._:_(volume:page), while references to the record from the direct appeal (SC07-
798) are cited as DA_:_(volume:page) and references to the transcripts in the direct
appeal are cited as T._:_ (volume:page).
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The jury found Simpson guilty on both counts. (T.19:1725-26.) Before the
penalty phase, one of the jurors recanted her verdict because she never believed
that Simpson was guilty, but the court denied a mistrial and proceeded to the
penalty phase. (T.22:1826-28, 1835-39.) The jury recommended death sentences
by votes of 8-4 for Big Archie‘s murder and 9-3 for Kimbler‘s murder.
(T.22:1976.) On March 29, 2007, Judge Arnold entered a judgment of conviction
and sentence adjudicating Simpson guilty of both counts of first degree murder and
imposing two death sentences. (DA5:901-06.)
On direct appeal, this Court affirmed the conviction and sentence and denied
rehearing on March 27, 2009. Simpson v. State, 3 So. 3d 1135 (Fla. 2009). The
Supreme Court of the United States denied certiorari on October 5, 2009. Simpson
v. Florida, 130 S. Ct. 91 (2009).
Simpson timely filed his original motion for collateral review under Florida
Rule of Criminal Procedure 3.851 on October 1, 2010, which he subsequently
amended with leave of court. (R.2:201-95; R4:735-R5:965.) Simpson also filed a
Motion to Require Preservation and Allow Inspection and Testing of Physical and
Biological Evidence pursuant to Florida Rule of Criminal Procedure 3.853 and
section 925.11, Florida Statutes (2011) (the ―Rule 3.853 motion‖). (R.3:576-
R.4:698.) The motion sought an order providing access to specifically identified
evidence that had been collected by the State for Simpson‘s blood spatter expert so
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she could determine whether the crime could have happened in the manner
asserted by the State. (R.3:589-94.) It also requested an order allowing post-
conviction counsel and both the blood spatter expert and a DNA lab analyst access
to the same evidence so that they could inspect it and determine whether any of it
was still suitable for DNA testing. (R.3:577, 584-96.) It advised that Simpson
intended to seek DNA testing of the evidence both to exonerate himself under Rule
3.853 and to support claims in his Rule 3.851 motion that his counsel was
ineffective. (R.3:577, 583, 592-94.)
By order rendered on March 1, 2012, Judge Arnold granted the motion to the
limited extent it sought to compel the State to preserve the evidence, and he
directed the Jacksonville Sheriff‘s Office (―JSO‖) and the clerk ―to ensure that the
evidence in this case is properly stored and preserved.‖ (R.9:1777.) But he
otherwise denied the motion to the extent it sought testing under Rule 3.853
because Simpson had failed to demonstrate that DNA testing at trial was
inconclusive or that further testing ―would produce a definitive result establishing
that Defendant is not the person who committed the crime.‖ (R.9:1768-73.)
Simpson timely filed the notice of appeal initiating the instant appeal.
(R.9:1796-1809.) He also timely filed a petition to review the non-final aspects of
the motion seeking discovery in support of the claims in his Rule 3.851 motion.
Simpson v. State, No. SC12-603. Because this appeal and the non-final review
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proceeding in SC12-603 arise from the same order and involve largely overlapping
facts, Simpson moved to consolidate the two proceedings for briefing on May 11,
2012. The State filed a response in opposition to that motion on May 24, 2012,
arguing that a response had not yet been ordered in SC12-603 and, in any event,
because the two proceedings involve different legal standards, consolidated
briefing might blur the issues. On August 1, 2012, the Court ordered the State to
file a response in SC12-603, and it denied the motion to consolidate on August 16,
2012. Accordingly, Simpson is briefing the two proceedings separately. While the
statements of facts in the two proceedings are similar in many regards, they are not
duplicative and the briefs in this case and the petition and reply in SC12-603
should be reviewed independently. For example, this brief provides far more detail
about the evidence presented at trial and Simpson‘s allegations supporting both his
Rule 3.851 and 3.853 motions.
Meanwhile, the Rule 3.851 motion remains pending in the trial court, but
this Court stayed those proceedings pending its decision in Simpson v. State, No.
SC12-763, in which Simpson appealed a non-final order denying a motion to
disqualify Judge Arnold because, in ruling on a motion to appoint an expert, Judge
Arnold stated that he refused to disbelieve sworn statements of law enforcement
officers. On September 21, 2012, the Court reversed in No. SC12-763 and
disqualified Judge Arnold from participating further in this case. Once the mandate
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is issued and a new trial judge is appointed, Simpson plans to request a stay of
further proceedings below until this appeal and SC12-603 are resolved.
Evidence Presented at Trial
The State produced no eyewitnesses to the murders and no physical evidence
directly placing Simpson at the scene of the murders. (T.11:1-19:1733.) There is no
dispute, however, that Big Archie and Kimbler were murdered by multiple axe
blows to the neck, head, and upper torso in the bedroom of Big Archie‘s home on
the Westside of Jacksonville on the evening of July 15, 1999. (T.13:591; 588;
T.15:836-37, 840-44.)
The last people known to have seen the victims alive were Big Archie‘s son,
Archie Crook, Jr. (a/k/a ―Little Archie‖), and Little Archie‘s close friend Shawn
Smallwood. (T.15:815.) One of the main defense theories throughout has been that
these men (especially Little Archie) are far more likely to have committed the
murders than Simpson. Smallwood did not testify because he had been killed in a
motorcycle accident sometime after Big Archie‘s death. (T.14:782.) Little Archie
did testify, however. (T.14:774-15:829.)
Little Archie admitted to being angry that his father was dating Kimbler and
that she was pregnant with Big Archie‘s child. (T.14:783-85.) This upset him
because he hoped that his parents would reconcile and believed that the pregnancy
would prevent that from happening. (T.14:784-85.) He conceded it was possible,
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