Friday, March 5, 2010

The replybrief in David Johnston



D. Todd Doss
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025
(386) 755-9119


CERTIFICATEOFFONT. . . . . . . . . . .7
Atkins v. Virginia
536 U.S. 304 (2002) 2,7
Bevel v. State
983 So. 2d 505 (Fla. 2008) 6,7
Bottoson v. State
813 So. 2d 31 (Fla. 2002) . . . . . . . . . . . . . . .. 6
Brown v. State
959 So. 2d 146 (Fla. 2007) 6,7
Burns v. State
944 So. 2d 234 (Fla. 2006) 6,7
Cherry v. State
959 So. 2d 702 (Fla. 2007) 6
Duckett v. State
918So.2d224(Fla.2205) . . . . . . . . . . . . ... 4
Evans v. State
995 So. 2d 933 (Fla. 2008) 6
Foster v. State
929 So. 2d 524 (Fla. 2006) 6,7

Hallman v. State
371 So. 2d 482 (Fla. 1979) 2
Hill v. State
921 So. 2d 579 (Fla. 2006) 6
Johnston v. State
960 So. 2d 757 (Fla. 2006) 6
Jones v. State
591 So. 2d 911 (Fla. 1991) 2,3,5,6
Jones v. State
966 So. 2d 319 (Fla. 2007) 6
Kearse v. State
969 So. 2d 976 (Fla. 2007) 6
Marek v. State
14 So. 3d 985 (Fla. 2009) . . . . . . . . . . . . . . . . 2
Nixon v. State
2 So. 3d 137 (Fla. 2009) 6
Phillips v. State
984 So. 2d 503 (Fla. 2008) 6,7
Rodgers v. State
948 So. 2d 655 (Fla. 2006) 6,7
Trotter v. State
932 So. 2d 1045 (Fla. 2006) . . . . . . . . . . . . .. 6,7
Zack v. State
911 So. 2d 1190 (Fla. 2005) . . . . . . . . . . . . . .. 6

In what has become a continuing theme throughout this death
warrant litigation, the State has chosen to resort to petty and
personal attacks against undersigned counsel. In its Answer
Brief, the State goes to great lengths to assail Mr. Johnston for
filing his notice of appeal at 12:24 a.m. on February 26, 2010,
rather than February 25, 2010. The State insists that this
action represents "a pattern of dilatory practice." (AB 2, fn 1).
According to the Merriam-Webster dictionary, the definition
for the word "dilatory" is "tending or intended to cause delay."
At no point does the State explain how Mr. Johnston's notice of
appeal, filed 24 minutes late, was intended to cause delay.l The
State's assertion is especially perplexing in light of the fact
that this Court had already set a briefing schedule that was in
no way dependent on when the notice of appeal was filed. It is
unfortunate that the State finds it necessary to engage in such
unprofessional tactics when such a serious matter is concerned.
lMr. Johnston's notice of appeal was filed at 12:24 a.m. on
February 26, 2010. The slight delay occurred because undersigned
counsel inadvertently failed to file the notice during the day on
February 25, 2010. The circuit court's order was received after
5:00 p.m. on February 23, 2010. The next day undersigned counsel
began working on Mr. Johnston's initial brief in recognition of
the tight briefing schedule outlined in this Court's February 22,
2010 order. The following day undersigned counsel had prepared
the notice of appeal and realized shortly after midnight, while
working on Mr. Johnston's initial brief, that he had forgotten to
file the notice earlier in the day. Undersigned counsel then
immediately filed the notice of appeal.

In its answer brief, the State erroneously treats Mr.
Johnston's claim as an initial filing pursuant to Rule 3.203
rather than a claim based on newly discovered evidence. In doing
so, the State ignores the fact that the proper analysis is
dictated by this Court's decision in Jones v. State, 591 So. 2d
911 (Fla. 1991):
A court must first determine that the "asserted facts
'must have been unknown by the trial court, by the
party, by counsel at the time of trial, and it must
appear that defendant or his counsel could not have
known them by the use of diligence.'" Id. at 916
(quoting Hallman v. State, 371 So. 2d 482, 485) (Fla.
1979) .
Next, a court must further determine that, "The newly
discovered evidence must be of such a nature that it
would probably produce an acquittal on retrial." Id.
at 915. "If the defendant is seeking to vacate a
sentence, the second prong requires that the newly
discovered evidence would probably yield a less severe
Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) citing Jones v.
State, 591 So. 2d 911, 915 (Fla. 1991). Here, Mr. Johnston has
met the standard set forth in Jones. The prohibition against the
execution of the mentally retarded was not effectuated until
Atkins was rendered in 2002. Thus, this claim was unavailable at
the time of Mr. Johnston's trial. Thereafter, the WAIS-IV was
not available until after Mr. Johnston's original mental
retardation determination. Further, the score which Mr. Johnson
obtained on the WAIS-IV, 61, in conjunction with the finding of

mental retardation by Drs. Krop and Eisenstein, would yield a
less severe sentence as Mr. Johnston would not be eligible for
the death penalty.
The only argument advanced by the State regarding the newly
discovered evidence standard of Jones consists of a confusing
assertion that the evidence is "new", not "newly discovered."
(AB 29). As the State attempts to explain, the evidence is
"new", as opposed to "newly discovered", because it was not "in
existence but unknown" at the time of Mr. Johnston's original
trial (AB 29) .
The State's argument evinces a gross misunderstanding of
the nature of the evidence. The relevant evidence is Mr.
Johnston's intellectual functioning, his IQ. Mr. Johnston's IQ
has always been present, what has changed is the accuracy in
measuring it. This is no different than any other forensic
evidence that exists at the time of the original proceedings and
subsequently a test is developed that more accurately assesses
the value of that evidence. 2 The reality is that the evidence
of mental retardation has always been in existence in Mr.
Johnston's case, but the ability to measure and identify it has
2Under the State's theory, a defendant would never be able
to avail himself of scientific advances in forensic testing, such
as modern advances in DNA technology.

In an additional argument, despite the fact that Dr.
Eisenstein did not administer the WAIS-IV IQ test at issue until
July 20, 2009, the State categorizes Mr. Johnston's claim as
abusive because it was not included in his fourth successive
motion to vacate filed in May, 2009. (AB 27). The State further
asserts that Mr. Johnston's claim should have at the very least
been raised in his fifth successive motion to vacate filed on
August 17, 2009. Id. This argument is advanced despite the fact
that the State filed a motion to dismiss on jurisdictional
grounds that very motion, alleging it exceeded the scope of this
Court's remand for DNA testing. 3 For the State to now argue
3The circuit court, relying on the State's motion to dismiss
Mr. Johnston's fifth successive motion to vacate as well as on
this Court's decision in Duckett v. State, 918 So.2d 224 (Fla.
2205), found first and foremost that it was without jurisdiction
to hear Mr. Johnston's successive motion:
As noted by the State here in its "Motion to
Dismiss 'Successive Motion to Vacate Judgment and
Sentence with Special Request for Leave to Amend,'" the
Florida Supreme Court's order in the instant case
relinquished jurisdiction for the very limited purpose
of performing DNA testing on specific items listed by
Mr. Johnston. Accordingly, this court concludes that
it has the authority to deny Mr. Johnston's Successive
Motion to Vacate Judgment and Sentence on the basis of
Duckett alone.
(PCR2 787) (fn omitted) Only after the circuit court made this
determination did it state,
Moreover, in an abundance of caution, the court has
reviewed the motion under Rule 3.853, but still finds
that there is no reasonable probability that Mr.
Johnston would have been exonerated and/or had his
sentence reduced based on LABCORP's DNA analysis.

that Mr. Johnston was required to bring his newly discovered
evidence claim relative to mental retardation while the case was
on a limited remand for DNA testing, is disingenuous. 4
The State further asserts that Mr. Johnston is prohibited
from raising a mental retardation claim since it was litigated
previously. However, contrary to the State's argument, and as
discussed in Mr. Johnston's initial brief, the claim brought in
these proceedings is based upon newly discovered evidence of
mental retardation. As the State is fully aware, previously
litigated issues are often the subject of newly discovered
evidence claims in successive postconviction motions. Such
claims include, amongst other issues, recantations of prior
testimony, cases where substantial impeachment evidence comes to
light, or cases in which more accurate DNA testing has become
available. And such claims, including the one set forth by Mr.
Johnston, are to be evaluated under the standard this Court set
forth in Jones.
Finally, the State urges this Court to envision the dreaded
slippery slope that would follow if it were to consider Mr.
Johnston's claim as newly discovered evidence:
(PCR2 787).
4Notably, neither the State nor the circuit court in its
order addressed the fact that the circuit court did not have
jurisdiction on August 17, 2009, to entertain a claim of newly
discovered evidence of mental retardation.

If the law were as Johnston would have it be, the
following additional cases in which this Court upheld a
finding that the defendant is not mentally retarded
would be subject to relitigation (but for Bottoson)
based on the bare fact that the WAIS-IV test has been
released for use: Nixon v. State, 2 So. 3d 137, 146
(Fla. 2009); Evans v. State/McNeil, 995 So. 2d 933, 954
(Fla. 2008); Phillips v. State, 984 So. 2d 503, 513
(Fla. 2008); Bevel v. State, 983 So. 2d 505, 519-520
(Fla. 2008); Kearse v. State/McDonough, 969 So. 2d 976,
992 (Fla. 2007); Jones v. State, 966 So. 2d 319, 330
(Fla. 2007); Johnston v. State, 960 So. 2d 757, 762
(Fla. 2006); Cherry v. State, 959 So. 2d 702, 714 (Fla.
2007); Brown v. State, 959 So. 2d 146, 150 (Fla. 2007);
Rodgers v. State, 948 So. 2d 655, 668 (Fla. 2006);
Burns v. State, 944 So. 2d 234, 249 (Fla. 2006);
Trotter v. State/McDonough, 932 So. 2d 1045, 1050 (Fla.
2006); Foster v. State, 929 So. 2d 524, 533 (Fla.
2006); Hill v. State, 921 So. 2d 579, 584 (Fla. 2006);
Zack v. State, 911 So. 2d 1190, 1201-1202 (Fla. 2005);
Bottoson v. State, 813 So. 2d 31, 33 (Fla. 2002). (AB
30-31) (emphasis in original).
In relying on many of the aforementioned cases, the State,
whether intentionally or mistakenly, is simply misrepresenting
the substance of these cases to this Court. One of the
individuals whose case the State claims would have to be
relitigated, Clarence Hill, was executed quite some time ago by
the State of Florida. Another case listed by the State, Johnston
v. State, 960 So. 2d 757, 762 (Fla. 2006), is actually the same
Johnston in the present case. And at least seven of the other
individuals listed by the State failed to meet the standard for
mental retardation under either the second (adaptive functioning)
and/or third prong (onset before age 18) in addition to the first

prong (IQ score).5 Thus, none of these cases could possibly be
subject to relitigation regardless of a potentially lower IQ
score. Clearly, the State's doomsday scenario has been grossly
Mr. Johnston requests that this Court remand his case to the
circuit court for an evidentiary hearing, for the circuit court
to properly consider his motion under the applicable legal
standards, and for the circuit court to subsequently vacate his
judgment and sentence in the above-styled cause.
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished by electronic transmission and U.S. Mail, postage
prepaid, to Kenneth S. Nunnelley, Office of the Attorney General,
444 Seabreeze Blvd., Floor, Daytona Beach, FL 32118 on March
3, 2010.
This is to certify that this Reply Brief has been produced
5Four of the cases cited above by the State not only failed
on the first prong (IQ score), but also the second prong
(adaptive functioning) of the Atkins requirements. Burns v.
State, 944 So. 2d 234, 248 (Fla. 2006); Trotter v. State, 932 So.
2d 524 (Fla. 2006); Brown v. State, 959 So. 2d 146 (Fla. 2007);
Bevel v. State, 983 So. 2d 505, 520, fn. 8 (Fla. 2008). Two
other cases failed on both the second and third prongs. Rodgers
v. State, 948 So. 2d 655, 667 (Fla. 2006); Foster v. State, 929
So. 2d 524, 533 (Fla. 2006). And another case failed on all
three prongs. Phillips v. State, 995 So. 2d 933 (Fla. 2008).

in a 12 point Courier New type, a font that is not
proportionately spaced.
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Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181

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