IN THE SUPREME COURT OF FLORIDA

ARTHUR D. RUTHERFORD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

______________________/

CASE NO. SC06-1931

ANSWER BRIEF OF APPELLEE

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

CHARMAINE M. MILLSAPS

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

COUNSEL FOR THE STATE

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TABLE OF CONTENTS

PAGE(S)

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . iii

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ISSUE I

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE NEWLY

DISCOVERED EVIDENCE CLAIM? . . . . . . . . . . . . . . . 17

ISSUE II

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE CLAIM

THAT FLORIDA’S CLEMENCY PROCESS VIOLATES THE EIGHTH

AMENDMENT? . . . . . . . . . . . . . . . . . . . . . . . 38

ISSUE III

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE

CLAIM THAT FLORIDA’S STANDARD FOR NEWLY DISCOVERED

EVIDENCE VIOLATES THE EIGHTH AMENDMENT? . . . . . . . . 45

ISSUE IV

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE NEWLY

DISCOVERED EVIDENCE OF INNOCENCE CLAIM BASED ON THE

AFFIDAVIT OF JAIL INMATE ADKISON? . . . . . . . . . . . 53

ISSUE V

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE ACTUAL

INNOCENCE CLAIM? . . . . . . . . . . . . . . . . . . . . 74

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 79

-ii-

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 79

CERTIFICATE OF FONT AND TYPE SIZE . . . . . . . . . . . . . . 79

-iii-

TABLE OF CITATIONS

CASES PAGE(S)

334 So. 2d 561 (Fla. 1976) . . . . . . . . . . . . . . . . . 39

322 So. 2d 533 (Fla.1975) . . . . . . . . . . . . . . . . . . 28

267 So. 2d 8 (Fla. 1972) . . . . . . . . . . . . . . . . . . 36

549 S.E.2d 840 (N.C. 2001) . . . . . . . . . . . . . . . . . 42

797 So. 2d 1246 (Fla. 2001) . . . . . . . . . . . . . . . . . 34

923 So. 2d 535 (Fla. 1st DCA 2006) . . . . . . . . . . . . . 18

373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) . . 9,10,60

441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979) . . . . 21

842 So. 2d 817 (Fla. 2003) . . . . . . . . . . . . . . . . . 28

523 U.S. 392, 118 S. Ct. 1419, 140 L. Ed. 2d 551 (1998) . . . 22

786 So. 2d 1173 (Fla. 2001) . . . . . . . . . . . . . . . . . 32

379 So. 2d 97 (Fla. 1979) . . . . . . . . . . . . . . . . . . 20

379 So. 2d 97 (Fla. 1979) . . . . . . . . . . . . . . . . . . 53

2006 WL 1375091 (Fla. May 18, 2006) . . . . . . . . . . . . 20,52

-iv-

2006 WL 1699436 (Fla. 2006) . . . . . . . . . . . . . . . . . 24

541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) . . . . 9

808 So. 2d 145 (Fla. 2002) . . . . . . . . . . . . . . . . . 27

2006 WL 2729606 (11th Cir. September 26, 2006) . . . . 48,49,50

544 U.S. -, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) . . . . . . 9

391 F.3d 147 (2nd Cir. 2004) . . . . . . . . . . . . . . . . 75

916 So. 2d 925 (Fla. 1st DCA 2005) . . . . . . . . . . . . . 49

698 So. 2d 267 (Fla. 3d DCA 1997) . . . . . . . . . . . . . . 24

911 So. 2d 57 (Fla. 2005) . . . . . . . . . . . . . . . . . . 21

426 F.3d 868 (7th Cir. 2005) . . . . . . . . . . . . . . . . 78

2006 WL 2827647 (Fla. October 5, 2006) . . . . . . . . . . . 67

569 So. 2d 1225 (Fla. 1990) . . . . . . . . . . . . . . . . . 25

2006 WL. 2806686 (5th Cir. October 2, 2006) . . . . . . . . . 48

608 So. 2d 784 (Fla. 1992) . . . . . . . . . . . . . . . . . 32

408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) . . . 18,36

405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) . . . . 10

-v-

776 So. 2d 243 (Fla. 2001) . . . . . . . . . . . . . . . . . 25

776 So. 2d 243 (Fla. 2001) . . . . . . . . . . . 26,27,28,39,43

442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) . . . . . 42

868 So. 2d 498 (Fla. 2003) . . . . . . . . . . . . . . . . . 19

759 So. 2d 620 (Fla. 2000) . . . . . . . . . . . . . . . . . 24

455 F.3d 772 (7th Cir. 2006) . . . . . . . . . . . . . . . . 49

506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)

. . . . . . . . . . . . . . . . . . . . . . . . . 43,47,48,51,75

2005 WL. 3372888 (M.D. Fla., December 12, 2005) . . . . . . . 45

- U.S. -, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006) . . . . . 11

- U.S. -, 126 S. Ct. 2064, 165 L. Ed. 2d 1 (2006)

. . . . . . . . . . . . . . . . . . . . . 14,15,45,46,47,48,51,74

909 So. 2d 922 (Fla. 2d DCA 2005) . . . . . . . . . . . . . 19,25

909 So. 2d 922 (Fla. 2d DCA 2005) . . . . . . . . . . . . . . 25

533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) . . . 41

884 A.2d 694 (Md. App. 2005) . . . . . . . . . . . . . . . . 68

2006 WL. 2425522 (M.D. Fla., August 21, 2006) . . . . . . . . 45

-vi-

548 U.S. -, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) . 13,17,28,29

514 So. 2d 354 (Fla. 1987) . . . . . . . . . . . . . . . . . 27

808 So. 2d 1237 (Fla. 2002) . . . . . . . . . . . . . . . . 39,40

901 So. 2d 766 (Fla. 2005) . . . . . . . . . . . . . . . . . 74

841 So. 2d 431 (Fla. 2003) . . . . . . . . . . . . . . . . 24,65

26 Fed.Appx. 381, 2001 WL. 1298910 (6th Cir. 2001) . . . . . 40

845 So. 2d 74 (Fla. 2003) . . . . . . . . . . . . . . . . . . 32

841 So. 2d 362 (Fla. 2003) . . . . . . . . . . . . . . . . . 32

894 So. 2d 302 (Fla. 3d DCA 2005) . . . . . . . . . . . . . . 35

770 F.2d 918 (11th Cir. 1985) . . . . . . . . . . . . . . . . 25

424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) . . . . . 42

827 So. 2d 948 (Fla. 2002) . . . . . . . . . . . . . . . . . 61

786 So. 2d 547 (Fla. 2001) . . . . . . . . . . . . . . . . . 20

786 So. 2d 547 (Fla. 2001) . . . . . . . . . . . . . . . . . 53

-vii-

523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) . . . . 41

- U.S. -, 126 S. Ct. 1226, 163 L. Ed. 2d 1112 (2006) . . . . 27

904 So. 2d 370 (Fla. 2005) . . . . . . . . . . . . . . . . . 28

620 So. 2d 153 (Fla. 1993) . . . . . . . . . . . . . . . . . 39

499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) . . . 22

315 So. 2d 461 (Fla. 1975) . . . . . . . . . . . . . . . . . 18

428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976) . . . 18,33

739 So. 2d 1150 (Fla. 1999) . . . . . . . . . . . . . . 39,40,44

710 So. 2d 543 (Fla. 1998) . . . . . . . . . . . . . . . . . 67

536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) . . . . 8

385 F.3d 1300 (11th Cir. 2004) . . . . . . . . . . . . . . . . 5

438 F.3d 1087 (11th Cir. 2006) . . . . . . . . . . . . . . . 10

2006 WL 228883 (N.D.Fla. January 28, 2006) . . . . . . . . . 10

- U.S. -, 126 S. Ct. 1191, 163 L. Ed. 2d 1144 (2006) . . . . 10

-viii-

U.S. -, 126 S. Ct. 2915, 165 L. Ed. 2d 914 (2006) . . . . . 11

2006 WL. 2830968 (11th Cir. October 5, 2006) . . . . . . . . 11

774 So. 2d 637 (Fla. 2000) . . . . . . . . . . . . . . . . . . 8

545 So. 2d 853 (Fla. 1989) . . . . . . . . . . . . . . . . . . 7

545 So. 2d 853 (Fla. 1989) . . . . . . . . . . . . . . . . . 33

727 So. 2d 216 (Fla. 1998) . . . . . . . . . . . . . . . 7,8,69

- U.S. -, 125 S.Ct. 1342, 161 L.Ed.2d 142 (2005) . . . . . . . 9

926 So. 2d 1100 (Fla. 2006) . . . . . . . . . . . . . . . passim

541 U.S. 600, 124 S. Ct. 1941, 158 L. Ed. 2d 891 (2004) . . . 21

513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)

. . . . . . . . . . . . . . . . . . . . . . . . . . . 47,48,76,77

171 Fed.Appx. 470, 2006 WL. 707024 (5th Cir. 2006) . . . . . 42

754 So. 2d 657 (Fla. 2000) . . . . . . . . . . . . . . . . . 74

283 So. 2d 1 (Fla. 1973) . . . . . . . . . . . . . . . . . . 33

848 So. 2d 287 (Fla. 2003) . . . . . . . . . . . . . . . . . 62

754 So. 2d 84 (Fla. 4th DCA 2000) . . . . . . . . . . . . . . 35

-ix-

754 So. 2d 84 (Fla. 4th DCA 2000) . . . . . . . . . . . . . . 35

747 So. 2d 931 (Fla. 1999) . . . . . . . . . . . . . . . . . 35

1998 WL 276291 (4th Cir 1998) . . . . . . . . . . . . . . . . 76

118 F.3d 1442 (11th Cir. 1997) . . . . . . . . . . . . . . . 46

619 So. 2d 261 (Fla. 1993) . . . . . . . . . . . . . . . . . 25

846 So. 2d 405 (Fla. 2003) . . . . . . . . . . . . . . . . 19,25

825 So. 2d 362 (Fla. 2002) . . . . . . . . . . . . . . . . . 40

267 F.3d 544 (7th Cir. 2001) . . . . . . . . . . . . . . . . 76

341 F.3d 1273 (11th Cir. 2003) . . . . . . . . . . . . . . . 20

341 F.3d 1273 (11th Cir. 2003) . . . . . . . . . . . . . . . 53

143 Fed.Appx. 230, 2005 WL. 1943191 (11th Cir. 2005) . . . . 46

923 So. 2d 375 (Fla. 2005) . . . . . . . . . . . . . . . . . 67

545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) . . . . 40

111 Fed.Appx. 369, 2004 WL. 2030051 (6th Cir. 2004) . . . . . 43

911 So. 2d 81 (Fla. 2005) . . . . . . . . . . . . . . . . . . 32

644 So. 2d 1012 (Fla. 1994) . . . . . . . . . . . . . . . . . 32

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STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . 10,11,42

CONSTITUTIONAL PROVISIONS

Art. IV, § 8(a) . . . . . . . . . . . . . . . . . . . . . . 39,40

RULES

Florida Rule of Criminal Procedure 3.800 . . . . . . 24,31,35,32

Florida Rule of Criminal Procedure 3.851 . 19,31,35,36,49,60,64

Rule 9.210(b) . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

& Econ. 453, 474 (2003) . . . . . . . . . . . . . . . . . . . 30

203 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Rev. 703 (2005) . . . . . . . . . . . . . . . . . . . . . . . 29

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PRELIMINARY STATEMENT

Appellant, ARTHUR DENNIS RUTHERFORD, will be referred to as

appellant or by his proper name. Appellee, the State of Florida,

will be referred to as the State. Pursuant to Rule 9.210(b), Fla.

R. App. P. (1997), this brief will refer to a volume according to

its respective designation within the Index to the Record on

Appeal. A citation to a volume will be followed by any appropriate

page number within the volume. The trial transcript will be

referred to as (T. Vol. pg). The postconviction record on appeal

will be referred to as (PC Vol. pg). The record relating to the

second successive motion will be referred to as (SM Vol. pg). The

symbol "IB" will refer to appellant’s initial brief and will be

followed by any appropriate page number. All double underlined

emphasis is supplied.

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STATEMENT OF THE CASE AND FACTS

This is an appeal of a trial court’s denial of a successive

motion for postconviction relief in a capital case with an active

warrant. The facts of the crime, as stated in the Eleventh

Circuit’s opinion, are:

During the summer of 1985, Rutherford told his

friend Harold Attaway that he planned to kill a woman and

place her body in her bathtub to make her death look like

an accident. Rutherford also told a long-time business

associate, Sherman Pittman, that he was going to get

money by forcing a woman to write him a check and then

putting her in the bathtub. If the woman initially

refused to make out the check, Rutherford explained that

he would “get her by that arm and she would sign.” It was

then that Rutherford bragged that he would do the crime

but not the time. About a week after making those

statements, Rutherford again told Attaway about his

homicidal plan. Rutherford also told his uncle that they

could get easy money by knocking a woman Rutherford

worked for in the head. Unfortunately, none of these

three men took Rutherford seriously enough to report his

plans to the authorities. If any of them had,

Rutherford's murder of Stella Salamon a week later could

have been prevented.

Mrs. Salamon, a 63-year-old widow originally from

Australia, lived alone in Santa Rosa County, Florida with

her two Pekingese dogs since her husband had died

unexpectedly from a heart attack two years earlier. Other

than a sister-in-law in Massachusetts, she had no family

in this country.

Rutherford, who hired out to do odd jobs, installed

sliding glass doors in the doorway leading from Mrs.

Salamon's patio to her kitchen. Before long, Mrs. Salamon

had those sliding glass doors replaced because they did

not close and lock properly. She told her long-time

friend and next-door neighbor Beverly Elkins that the

unlocked doors made her nervous and that she wondered if

Rutherford had intentionally made the doors so that she

could not lock them. Mrs. Salamon also said that

Rutherford kept coming to her house and acted as though

he was “casing the joint.”

It is unclear whether Mrs. Salamon notified

Rutherford about the problems with the doors, but on the

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morning of August 21, 1985, Rutherford asked Attaway to

come along with him when he went to repair the doors he

had installed for Mrs. Salamon. When they got to her

house, she told them she had those doors replaced.

Attaway left to get money to give Mrs. Salamon as a

refund on the doors. Rutherford stayed behind at Mrs.

Salamon's house.

Around noon that day, Mrs. Salamon received a call

from her friend Lois LaVaugh. Mrs. Salamon told Ms.

LaVaugh that she was nervous because Rutherford had been

at her house for “quite awhile.” Ms. LaVaugh drove over

there and found Rutherford sitting shirtless on Mrs.

Salamon's porch. Rutherford left after Ms. LaVaugh

arrived, and Mrs. Salamon told her that Rutherford

“really has made me nervous” and had been sitting around

on her couch. Apparently, Mrs. Salamon never got the

refund that Attaway was supposed to bring, and Rutherford

left the old glass doors in her garage.

At 7:00 the next morning, August 22, Rutherford and

Attaway went to retrieve the old doors from Mrs.

Salamon's garage. When they reached the house, Rutherford

told Attaway that he had a gun in his van and said, “If

I reach for that gun, you'll know I mean business.”

Attaway testified that this was the first time he really

believed that Rutherford might actually hurt someone, yet

he still did nothing about it. While they were loading

the doors, Attaway overheard Mrs. Salamon say to

Rutherford, “You can just forget about the money.”

Later that morning, between 9:30 and 10:30 a.m., the

manager of a local Sears store saw Mrs. Salamon when she

came by to pick up a package. She also stopped at the

Consolidated Package Store and made a purchase at 10:29

a.m., according to computer sales records. After that,

Rutherford was the only other person known to have seen

Mrs. Salamon alive, and she was not alive long, as

Rutherford's actions on that day evidence.

Around noon, Rutherford went to see Mary Frances

Heaton, a woman who sometimes baby-sat for his children

and with whom he had once lived for a few months. He

showed her one of Mrs. Salamon's checks and asked her to

fill it out. Heaton cannot read or write other than to

sign her name, so she called for her thirteen-year-old

niece, Elizabeth. Rutherford promised Elizabeth money if

she would fill out the check as instructed. Elizabeth

filled out the check the way Rutherford told her to,

making it payable to Heaton, but she did not sign

anyone's name on it.

Rutherford told Heaton that he owed her money for

-4-

work she had done for him and asked her to accompany him.

He took Heaton to the Santa Rosa State Bank, gave her the

check, and sent her into the bank to cash it. Because of

the blank signature line, the teller refused to cash the

check; Heaton returned to Rutherford's van and told him.

Rutherford responded by driving them to the nearby

woods, where he took out a wallet, checkbook, and credit

cards wrapped in a shirt, and threw the bundle into the

trees. He also signed Mrs. Salamon's name onto the check,

and then they went back to the bank. Outside the bank,

Heaton watched as Rutherford endorsed Heaton's name on

the check. In doing so Rutherford misspelled Heaton's

name, scratched it out, and corrected it. Heaton

re-entered the bank, and this time she successfully

cashed the check and left with $2,000 in one hundred

dollar bills. Rutherford gave Heaton $500 of those funds,

and she in turn gave Elizabeth $5 for filling out the

check.

Around 3:00 that afternoon, Rutherford visited his

friend Johnny Perritt. He told Perritt that he had

“bumped the old lady off” and showed him $1500 in cash.

He wanted Perritt to hold $1400 of that amount for him.

Rutherford said that he had hit the “old lady” in the

head with a hammer, stripped her, and put her in the

bathtub. Perritt refused to take the cash, and his mother

later notified the police of Rutherford's claim to have

committed a murder.

Earlier that day Mrs. Salamon had made plans to go

walking that evening with Beverly Elkins and another

neighbor. At 6:30 p.m. Ms. Elkins tried to contact Mrs.

Salamon by phone but got no answer. She went to Mrs.

Salamon's house, saw her car outside, and realized that

she must still be at home. Ms. Elkins rang the front

doorbell. After receiving no answer, she went around back

and through the sliding glass doors saw that the

television was on and that the normally calm dogs were

jumping around excitedly. Ms. Elkins retrieved a spare

key to the house, met up with the other neighbor who was

to have gone walking with them that night, and the two

women let themselves into Mrs. Salamon's home.

When the two women entered the kitchen through the

carport door, they heard water running. They followed the

sound to a little-used guest bathroom. There they were

horrified to find Mrs. Salamon's naked body floating in

the water that filled the tub to overflowing. Realizing

that their friend was dead, the stunned women went to

call for help. When walking through the house, Ms. Elkins

noticed that Mrs. Salamon's eyeglasses were on the

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kitchen floor underneath the counter. The makings of a

tomato sandwich were out on the counter. Mrs. Salamon had

liked to eat tomato sandwiches for lunch.

When crime scene investigators arrived they found

three fingerprints on the handle of the sliding door to

the bathtub, one fingerprint on the tile wall of the tub,

and a palm print on the window sill inside the tub with

the fingers up and over the sill as though the person had

grabbed it. All of those prints were later identified as

Rutherford's. Blood was spattered on the bathroom walls

and floor. According to an expert, the spatter pattern

indicated that the blows occurred while Mrs. Salamon was

sitting or kneeling on the bathroom floor.

Mrs. Salamon's naked body floated face-up in the

water. She had been viciously beaten. There were bruises

on her nose, chin, and mouth and a cut on the inside of

her lip consistent with a hand being held forcefully over

her face. Her lungs showed signs of manual asphyxiation,

apparently from someone covering her nose and mouth. Her

arms and knees were bruised and scraped, and her left arm

was broken at the elbow. Of the three large wounds on her

head, two were consistent with being struck with a blunt

object or having her head slammed down. The other wound,

a puncture that went all the way to the bone, appeared to

be from a blow with a claw hammer or screwdriver. Her

skull was fractured from one side to the other.

Severe as those injuries were, none of them were the

actual cause of Mrs. Salamon's death. Although Rutherford

had beaten and smothered her, she had water in the lungs.

That shows the 63-year-old widow was still alive when

Rutherford stripped off her clothes and placed her in the

bathtub to drown.

Rutherford was tried for the first degree murder and armed

robbery of Mrs. Salamon. During the trial, Rutherford moved for a

mistrial based on a discovery violation which was ultimately

granted. After a change of venue to Walton County, Rutherford was

retried. He was represented by two public defenders, William Treacy

and John Gontarek. During the guilt stage of the trial, Rutherford

took the stand and tried to explain his prints in the bathroom by

jeopardy; (2) the trial court improperly considered Rutherford's

lack of remorse in making the finding of heinous, atrocious, and

cruel; (3) the evidence does not establish the heightened

premeditation necessary to support a finding that the killing was

committed in a cold, calculated, and premeditated manner without

any pretense of moral or legal justification; (4) the trial court

-6-

claiming that Mrs. Salamon had asked him to realign the shower door

when he was at her house on August 21 (the day before she was

killed) because her nieces and nephews had knocked the door off its

track. The prosecution rebutted Rutherford’s explanation by proving

that Mrs. Salamon did not have any nieces or nephews, and according

to Beverly Elkins, her close friend, no young children had visited

Mrs. Salamon's house in the weeks prior to her death.

On October 2, 1986, the jury found Rutherford guilty. During

the penalty phase, the defense presented character evidence and

testimony about Rutherford's childhood, his family, his service as

a Marine during the Vietnam War, and his nervousness, nightmares,

and night sweats since returning from Vietnam. The jury recommended

death, this time by a seven-to-five vote. The trial court imposed

a death sentence based on three aggravating circumstances: the

murder was especially heinous, atrocious, and cruel; it was cold,

calculated, and premeditated; and it was committed in the course of

1305.

Rutherford appealed to the Florida Supreme Court raising seven

did not consider mitigating evidence that Rutherford had served in

the armed forces in Vietnam and also improperly counted the

aggravating and mitigating circumstances rather than weighing them;

(5) the trial court impermissibly relied on the death

recommendation at a first trial; (6) being placed in restraints

before closing arguments in the penalty phase because of his

threatening conduct; and (7) testimony from three witnesses at the

penalty phase that the victim was afraid of the defendant.

counsel (IAC) at the guilt phase for failing to investigate,

prepare, and perform sufficiently; (2) IAC at the penalty phase for

failing to investigate, develop, and present substantial

mitigation; (3) IAC at the penalty phase for failing to object to

hearsay testimony regarding the victim's fear of Rutherford; (4)

improper penalty-phase jury instructions that shifted the burden of

proof to Rutherford; (5) improper penalty-phase jury instructions

regarding aggravating circumstances; (6) inapplicability of CCP;

(7) improper penalty-phase jury instruction on HAC; (8) untimely

imposition of written death sentence; (9) trial court's refusal to

find mitigators established by the record; (10) IAC at penalty

phase for conflict of interest in revealing confidences and secrets

to the trial court; (11) admission of inflammatory photographs;

(12) improper introduction of nonstatutory aggravators at the

penalty phase; (13) IAC at the penalty phase for failing to obtain

mental-health expert; (14) improper robbery sentence without

benefit of scoresheet; and (15) double jeopardy bar to retrial.

penalty phase for failing to object to the hearsay testimony

regarding the victim's fear of Rutherford; (2) ineffectiveness for

failing to obtain a mental health expert to offer mitigation

evidence during the penalty phase; (3) ineffectiveness for failing

to develop mitigating evidence; (4) the trial court erred in

-7-

107 L.Ed.2d 341 (1989).

Rutherford filed a motion for postconviction relief raising

summarily denying Rutherford's double jeopardy claim as

procedurally barred; (5) trial counsel was ineffective during the

guilt phase for failing to investigate, prepare, and perform; (6)

the trial court erred in summarily denying several of Rutherford's

violated the Double Jeopardy Clause of the Fifth Amendment; (2)

whether relief should have been granted on his penalty phase

ineffective assistance of counsel claim; and (3) whether his trial

counsel had a conflict of interest that rendered their

-8-

The Florida Supreme Court affirmed the trial court’s denial of

1998).

Rutherford filed a petition for writ of habeas corpus in the

Florida Supreme Court raising eleven claims of ineffectiveness of

appellate counsel which the Florida Supreme Court denied.

On April 2, 2001, Rutherford filed a petition for writ of

habeas corpus in federal district court. The district court denied

relief. Rutherford appealed to the Eleventh Circuit raising three

738 (2005).

On September 12, 2002, Rutherford filed a successive 3.851

L.Ed.2d 556 (2002), claim. Following a hearing, the trial court

-9-

denied the claim and the Florida Supreme Court affirmed.

(2005).

S.Ct. 1354, 158 L.Ed.2d 177 (2004), claim in a successive habeas

petition which the Florida Supreme Court denied on August 18, 2005.

Rutherford filed a third successive habeas petition raising a

2007, 161 L.Ed.2d 953 (2005), which was denied by the Florida

2139.

On November 29, 2005, Governor Jeb Bush signed a death

warrant. On December 21, 2005, Rutherford filed a successive 3.851

motion raising five claims: (1) the trial court improperly limited

his public records requests; (2) lethal injection is cruel and

unusual punishment; (3) lethal injection violates free speech; (4)

newly discovered evidence based on an inmate’s affidavit; and (5)

actual innocence. On December 23, 2005, the State filed a response

to the successive 3.851 motion. On December 24, 2005, Rutherford

L.Ed.2d 104 (1972).

-10-

response to the amended successive 3.851 motion. The trial court

summarily denied the successive motion for postconviction relief on

January 5, 2006. The Florida Supreme Court affirmed the trial

2006).

On January 27, 2006, Rutherford filed a § 1983 action in the

Northern District of Florida raising the constitutionality of

Florida’s lethal injection protocols. The Northern District

dismissed the petition for lack of jurisdiction but held, in the

alternative, that, assuming Petitioner has a cognizable claim under

42 U.S.C. § 1983, he was not entitled to relief due to his

WL 228883, *1 (N.D.Fla. January 28, 2006). The Eleventh Circuit

Rutherford filed a petition for writ of certiorari in the United

States Supreme Court. The United States Supreme Court granted a

stay pending disposition of the petition for writ of certiorari but

noted that “[i]n the event the petition for writ of certiorari is

granted, the stay shall terminate upon the sending down of the

1191, 163 L.Ed.2d 1144 (2006). On June 19, 2006, the United States

-11-

Supreme Court vacated the judgment and remanded the case to the

(2006). Judgment was returned to the Eleventh Circuit on July 21,

2006, which lifted the previously entered stay. On October 5,

2006, Rutherford’s § 1983 action regarding lethal injection was

§ 1983 because of Rutherford’s “unnecessarily delay” and noting he

“deliberately waited until the last few days before his execution

to file what he could have filed many months, if not years,

earlier.”).

On September 26, 2006, Rutherford filed a second successive

3.851 motion in the trial court, raising three claims: (1) relying

on an American Bar Association report, entitled “Evaluating

Fairness and Accuracy in State Death Penalty Systems: The Florida

Death Penalty Assessment Report”, he asserted that the ABA report

is newly discovered evidence that Florida’s death penalty scheme

violates the Eighth and Fourteenth Amendments; (2) Florida’s

clemency process violates the Eighth and Fourteenth Amendments; and

(3) the failure of Florida Court to recognize a freestanding claim

of actual innocence violates the Eighth Amendment. The State filed

a response on September 29, 2006. Rutherford filed a reply on

-12-

October 2, 2006. On October 2, 2006, Rutherford also filed a

3.800(a) motion to correct illegal sentence turning his claim

regarding the ABA report into the basis for this motion. On

October 2, 2006, Rutherford also filed an amendment to his second

successive 3.851 motion, raising two additional claims: (4) newly

discovered evidence based on the affidavit of inmate Brian Adkison

and (5) his actual innocence based on the affidavit. On October 2,

2006, the State filed a motion to strike Rutherford’s 3.800(a) as

an unauthorized pleading. On October 3, 2006, the State filed a

response to the amended 3.851 motion which raised the two

additional claims. The trial court held a case management

conference on October 3, 2006. The trial court granted the State’s

motion to strike Rutherford’s 3.800(a) motion. On October 6, 2006,

the trial court summarily denied Rutherford’s second successive

3.851 motion, determining that no evidentiary hearing was warranted

on any of the claims.

The Governor has signed a death warrant with the execution

scheduled for Wednesday, October 18, 2006, at 6:00 P.M.

-13-

SUMMARY OF ARGUMENT

Rutherford, relying on an American Bar Association report

entitled “Evaluating Fairness and Accuracy in State Death Penalty

Systems: The Florida Death Penalty Assessment Report”, asserts that

the ABA report is newly discovered evidence that Florida’s death

penalty scheme violates the Eighth and Fourteenth Amendments. This

claim is procedurally barred. Constitutional challenges to

Florida’s death penalty statute should be raised on direct appeal,

not in postconviction litigation, much less after a warrant is

signed. Furthermore, Rutherford has no standing to raise many of

his constitutional challenges. Rutherford cannot meet either prong

of the test for newly discovered evidence. An ABA report is not

evidence. The opinions of the ABA committee members would not be

admissible at any retrial or new penalty phase. New evidence must

be admissible to warrant a new trial or new penalty phase. On the

merits of the ABA report, the State simply cannot improve on

(2006)(Scalia, J., concurring). The trial court properly summarily

denied the newly discovered evidence claim.

Rutherford asserts Florida’s clemency process violates the

-14-

Eighth and Fourteenth Amendments. First, the Eighth Amendment does

not apply to clemency proceedings. It is the Due Process Clause

that governs clemency proceedings and it requires only minimal due

process. Rutherford was afforded all the process he was due, and

more, in his first clemency proceeding. He was given an

opportunity to be heard which minimal due process requires. And he

was represented by counsel which minimal due process does not

require. Rutherford’s complaints relate to his second clemency

petition. Rutherford has no due process rights regarding a second

clemency petition. The trial court properly summarily denied the

due process claim.

Rutherford asserts Florida’s failure to recognize freestanding

claims of actual innocence violates the Eighth Amendment citing

This issue is procedurally barred. Moreover, there is no Eighth

Amendment requirement regarding actual innocence claims.

Furthermore, Florida has the equivalent of an actual innocence

claim. Florida uses the newly discovered evidence analysis. Thus,

the trial court properly summarily denied this claim.

Rutherford, relying on a last minute affidavit of jail inmate

-15-

Adkison, asserts there is newly discovered evidence of his

innocence and therefore, he is entitled to a new trial.

Rutherford’s claim should be denied as procedurally barred because

the substance of his newly discovered evidence claim has already

been addressed by the trial court and this Court and rejected by

both. The substance of Adkison’s affidavit is the same as the

prior affidavit, the Gilkerson affidavit. Moreover, all the

reasons given by this Court in its opinion rejecting the earlier

newly discovered evidence claim are equally applicable to this

newly discovered evidence claim. This affidavit would not produce

an acquittal on retrial, anymore than the earlier affidavit would,

as this Court previously concluded. The trial court properly

summarily denied the newly discovered evidence claim.

Rutherford, based on the affidavits of Adkison and Gilkerson,

-, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). To present a viable claim

of actual innocence, Rutherford must present reliable evidence of

innocence such as scientific evidence, or a trustworthy eyewitness

account, or evidence. An affidavit from a convicted felon,

reporting what a mentally ill person, who was always “taking pills”

and “rocking”, told him, nearly a decade ago, is simply unreliable.

It is not scientific evidence, or a trustworthy eyewitness account,

-16-

or physical evidence. Rutherford presents no reliable evidence of

actual innocence. Morever, as this Court previously observed,

discussing the prior affidavit, Adkison’s impeachment testimony

“would not have contradicted or provided an innocent explanation

for any of the other evidence presented at trial indicating that

Rutherford was the perpetrator.” Nor would Adkison’s testimony

have “affected Ward's uncontradicted testimony placing Rutherford

in possession of the victim's check.” Rutherford’s actual innocence

claim totally ignores his fingerprints in the bathroom; his

rebutted explanation of those fingerprints; and the four

prosecution witnesses’ testimony that he confessed to them either

before or after the crime. The trial court properly summarily

denied the claim.

Moratorium Implementation Project of the ABA. The ABA section

released reports on Alabama, Arizona and Georgia, as well as

Florida. (ABA report at 1). The reports on the other three state

are available on the internet.

-17-

ARGUMENT

ISSUE I

WHETHER THE TRIAL COURT PROPERLY SUMMARILY

DENIED THE NEWLY DISCOVERED EVIDENCE CLAIM?

Rutherford, relying on an American Bar Association report

entitled “Evaluating Fairness and Accuracy in State Death Penalty

Systems: The Florida Death Penalty Assessment Report”, asserts that

the ABA report is newly discovered evidence that Florida’s death

This claim is procedurally barred. Constitutional challenges to

Florida’s death penalty statute should be raised on direct appeal,

not in postconviction litigation, much less after a warrant is

signed. Furthermore, Rutherford has no standing to raise many of

his constitutional challenges. Rutherford cannot meet either prong

of the test for newly discovered evidence. An ABA report is not

evidence. The opinions of the ABA committee members would not be

admissible at any retrial or new penalty phase. New evidence must

be admissible to warrant a new trial or new penalty phase. On the

merits of the ABA report, the State simply cannot improve on

-18-

(2006)(Scalia, J., concurring). The trial court properly summarily

denied the newly discovered evidence claim.

The trial court’s ruling

The trial court ruled:

Defendant claims that newly discovered empirical

evidence demonstrates that Mr. Rutherford’s conviction

and sentence of death constitutes cruel and unusual

punishment in violation of the Eighth and Fourteenth

Amendments to the United States Constitution. (Motion to

Vacate p. 5). Defendant asserts this newly discovered

evidence claim based upon a recent report released on

September 17, 2006, Evaluating Fairness and Accuracy in

the State Death Penalty System: The Florida Death Penalty

Assessment Report (hereafter ABA Report), which contains

a compilation of information, analysis, and opinions,

makes clear that Florida’s death penalty process violates

the decision rendered by the United States Supreme Court

to Vacate p. 5-40).

the States to create a system that is designed to ensure

reliability.” (Huff Hrg. Tr. 17:2-4). Defendant points

out that the ABA Report outlines similar factors that

Texas’ death penalty statutes to be unconstitutional.

(Huff Hrg. Tr. 18:14-19). In sum, Defendant contends the

ABA Report should be considered as evidence and requests

the Court to conduct an evidentiary hearing to establish

the facts relied upon within the ABA Report. (Huff Hrg.

Tr. 51:19).

In addition to Defendant’s argument that the ABA

Report constitutes newly discovered evidence, Defendant

asserts his right to present evidence in the 2.850

proceeding to establish the unconstitutionality of

(Florida’s death penalty) statute. (Huff Hrg. Tr. 82:19-

22) and have this Court declare the statute

unconstitutional. (Huff Hrg. Tr. 33:1-3). However, the

Florida Supreme Court has held Florida’s Death Penalty

So.2d 461 (Fla. 1975), and that sentencing scheme was

reviewed and upheld by the United States Supreme Court.

-19-

This Court initially notes that opinions, reports or

recommendations are not binding law.

The State argues that “personal opinions of

Florida’s death penalty scheme do not tend to prove or

disprove Rutherford’s guilt or innocence or his

appropriate sentence. . . .personal opinions would not be

admissible at trial or a penalty phase.” (State’s

Response to Second Successive Motion p. 9).

Clearly, the ABA Report does not constitute newly

discovered evidence. The information, analysis and

conclusions that are contained within the ABA Report are

based on the opinions of individuals who were selected by

the ABA to form an assessment team. This assessment team

reviewed and identified problems that they perceived

undermine the death penalty procedures in this state.

A newly discovered evidence claim may be raised

pursuant to Rule 3.851(e)(2)(c). However, to consider

this newly discovered evidence in light of granting a new

trial, the evidence must be determined to be admissible.

(noting that the newly discovered evidence must be

1998) (noting the trial court is to “consider all newly

discovered evidence which would be admissible” at trial).

Florida Supreme court addressed the two-prong test for

determining whether a conviction should be set aside on

the basis of newly discovered evidence: 1) 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, and; 2) the newly discovered evidence must be

of such nature that it would probably produce an

acquittal on retrial.

Here Defendant fails to establish how the

information gathered by the ABA assessment team regarding

death penalty procedures falls within the consideration

of “newly discovered evidence” as contemplated by Rule

424 (Fla. 2003), receded from on different grounds,

OIG report to be inadmissible hearsay). Thus, this claim

is denied.

(Order at 4-7).

-20-

Standard of review

The standard of review for a newly discovered evidence claim

(Fla. May 18, 2006)(noting that “absent an abuse of discretion, a

trial court's decision on a motion based on newly discovered

evidence including a witness's newly recanted testimony will not be

that a motion for a new trial based on newly discovered evidence is

the denial of a motion for a new trial based on newly discovered

trial based on newly-discovered evidence is reviewed for abuse of

discretion). Where no evidentiary hearing is held below, the court

must accept the defendant's factual allegations to the extent they

(Fla. 2002).

Procedural bar

Rutherford’s facial constitutional challenge to Florida’s

death penalty statute is procedurally barred. Constitutional

challenges to the death penalty statute should be raised on direct

-21-

contention that Florida's capital sentencing statute fails to

prevent the arbitrary and capricious imposition of the death

penalty and violates the due process guarantees against cruel and

unusual punishment to be procedurally barred because it was not

raised on direct appeal). Rutherford’s facial challenge is

procedurally barred.

Standing

Rutherford lacks standing to raise many of his facial

constitutional challenges to Florida’s death penalty statute. The

United States Supreme Court recently explained that facial

challenges to criminal statutes on overbreadth grounds are

in particular, overbreadth challenges “are especially to be

constitutional challenges invite judgments on fact-poor records,

but they entail relaxing the familiar requirements of standing to

allow a determination that the law would be unconstitutionally

applied to different parties and different circumstances from those

U.S. 130, 132, n.4, 99 S.Ct. 1623, 1624, n.4, 60 L.Ed.2d 96

411 (1991)(holding white defendant had third party standing to

raise the discriminatory use of peremptory challenges in jury

140 L.Ed.2d 551 (1998)(holding white defendant had third party

standing to raise the exclusion of blacks from foreperson service

in grand juries). Rutherford is not raising such a challenge in

his successive postconviction motion and therefore, he has no third

party standing.

-22-

(1979)(noting that because one of the defendants was convicted by

a unanimous jury, it lacks standing to challenge the

constitutionality of the provisions of Louisiana law allowing

conviction by a nonunanimous jury).

Rutherford is raising a generalized, systematic challenge to

Florida’s death penalty system, highlighting alleged problems, many

of which did not occur in his case. He is limited to challenges or

problems that occurred in his particular case. For example, the

ABA report and Rutherford’s brief discuss judicial overrides.

Rutherford’s case is not an override case; his jury recommended

death. The ABA report and Rutherford’s brief also discuss racial

disparity. Rutherford is a white male. The victim, Stella

Salamon, was also white. It is one thing to permit third-party

standing to white defendants to assert the rights of racial

it is quite another to permit a white defendant standing to argue

unconstitutionality based on racial disparities, that did not, and

-23-

perverse to allow a perpetrator third party standing to raise the

right of victims, African-American or otherwise. The ABA report

and Rutherford’s brief also discuss mental disabilities.

Rutherford, however, makes no argument that he suffers from mental

retardation or serious mental illness. Rutherford simply does not

have standing to raise these types of issues. Rutherford lacks

standing.

Merits

established the two-prong test for determining whether a conviction

should be set aside on the basis of newly discovered evidence: (1)

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, and (2) the newly

discovered evidence must be of such nature that it would probably

produce an acquittal on retrial. To reach this conclusion the

trial court is required to consider all newly discovered evidence

which would be admissible at trial and then evaluate the weight of

both the newly discovered evidence and the evidence which was

In considering the second prong, the trial court should

initially consider whether the evidence would have been admissible

-24-

at trial or whether there would have been any evidentiary bars to

its admissibility. Once this is determined, an evaluation of the

weight to be accorded the evidence includes whether the evidence

goes to the merits of the case or whether it constitutes

impeachment evidence. The trial court should also determine whether

the 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.

does not meet the requirements for a new trial based on newly

So.2d 267 (Fla. 3d DCA 1997)(concluding that results of soil

studies of other nurseries was not “newly-discovered evidence” that

would warrant a new trial because test results from other growers

were not sufficiently linked to instant facts to form basis for

(Fla. 2000), does not constitute “newly discovered evidence” for

purposes of Florida Rule of Criminal Procedure 3.850(b)(2) “because

the rule contemplates a fact in the sense of evidence which is

anything which tends to prove or disprove a material fact.”).

Indeed, the report is not evidence at all. Basically, it is the

no abuse of discretion in trial court's refusal to allow defense

witnesses to express their personal opinions concerning the

So.2d 1225, 1230 (Fla. 1990)(finding no abuse of discretion in the

trial court refusal to allow the victim’s daughter from expressing

testimony concerning whether the death penalty has a deterrent

effect because such evidence is designed to persuade the sentencer

that the legislature erred when it enacted a death penalty

statute).

-25-

personal opinion of eight persons. Personal opinions are not facts

as envisioned by the concept of “newly discovered evidence” because

they are not a fact because they do not tend to prove or disprove

a material fact. Personal opinions of Florida’s death penalty

scheme do not tend to prove or disprove Rutherford’s guilt or

innocence or his appropriate sentence.

Moreover, these personal opinions would not be admissible at

admissible to warrant granting a new trial or penalty phase and the

DCA 2005)(noting that the newly discovered evidence must be

the trial court is to “consider all newly discovered evidence which

would be admissible” at trial). The ABA report would be

2003)(noting that an OIG report would be inadmissible hearsay).

-26-

Supreme Court rejected a newly discovered evidence claim based on

an interim report by the New Jersey Attorney General’s Office

concerning racial profiling in New Jersey. Glock had been stopped

on the New Jersey turnpike in the murder victim's stolen car.

explained that 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 use of diligence.” The

trial court had denied the claim, reasoning that the concept of

profiling has been well known for several years and yet Glock

waited some fourteen years and only on the eve of execution on a

The trial court noted that Glock offered nothing that would

challenge, in any way, the trooper's testimony that he validly

stopped the vehicle for an improper display of the license tag.

The trial court also found the claim untimely because it was an

“eleventh hour exercise in speculation.” The Florida Supreme Court

affirmed the trial court's conclusions regarding the denial of the

noted that the claim that minorities were subject to a

disproportionate number of traffic stops on the New Jersey Turnpike

lingering doubt more than jury unanimity. The United States

Supreme Court recently reaffirmed that the Eighth Amendment does

not require that a defendant be allowed to present lingering doubt

163 L.Ed.2d 1112 (2006)(observing that “[t]his Court's cases have

not interpreted the Eighth Amendment as providing such a defendant

the right to introduce at sentencing, evidence designed to cast

‘residual doubt’ on his guilt of the basic crime of conviction.”).

Lingering or residual doubt is not a mitigating circumstance in

-27-

was a claim that has been known for a number of years, as indicated

by reported cases addressing that issue and therefore, they found

the claim procedurally barred. The Court also concluded that the

motion was insufficiently pled because it did not present evidence

that would probably produce an acquittal or result in a successful

motion to suppress. This Court also found nothing that Glock

asserted in his successive motion contradicted the “established

fact” that the trooper stopped the victim's car because the license

plate was improperly displayed. The Court also noted that Glock

even assuming that an official policy of racial profiling existed

in New Jersey in 1983, it is mere speculation that the stop was

connected to such a policy.

report, and raised by Rutherford in his second successive 3.851

motion, have been known for years. For example, the ABA report

actually is not mitigation; it is a standard of proof. Traditional

mitigation concerns the defendant’s background and character.

Lingering doubt, by contrast, increases the State’s burden of proof

in the penalty phase from beyond a reasonable doubt to absolute

certainty and there is no Eighth Amendment justification for doing

so. Neither the federal constitution nor Florida law requires

lingering doubt be considered in mitigation. Basically, the ABA

panel and opposing counsel disagree with the United States Supreme

Court and this Court about the appropriate standard of proof in a

penalty phase.

concurring)(noting that a nonunanimous jury is that this is what

has been mandated by Florida statute since 1972 . . . and “has been

383 (Fla. 2005) (observing: “[t]his Court has repeatedly held that

it is not unconstitutional for a jury to recommend death on a

(Fla.1975)(rejecting a contention that a jury recommendation by

nonunanimous vote violates the Sixth Amendment right to a jury

trial).

-28-

a jury to recommend death by a majority vote has been authorized by

statute since 1972 and has been discussed in numerous Florida

Rutherford’s motion is also insufficiently pled, just as Glock’s

was, because it does not present evidence that would probably

produce an acquittal in any retrial. Rutherford presents no

evidence in this claim of his innocence of the crime or the death

penalty. Rutherford’s claim, like Glock’s, is also an “eleventh

hour exercise in speculation.”

Regarding the ABA report, the State simply cannot improve on

Justice Scalia’s devastating criticism of reports, such as the ABA

-29-

126 S.Ct. 2516, 2531-2539, 165 L.Ed.2d 429 (2006)(Scalia, J.,

concurring). Justice Scalia pointed out that there is not a single

case - not one - in which it is clear that a person was executed

for a crime he did not commit. There is “not a single verifiable

case” of a mistaken modern execution but “it is easy as pie to

identify plainly guilty murderers who have been set free.” He

noted that these exonerations came about, not through the operation

(Scalia, J., concurring)(emphasis in original). Reversal of an

erroneous conviction on appeal or on habeas, or the pardoning of an

innocent condemnee through executive clemency, “demonstrates not

the failure of the system but its success.”

The State can also point to numerous recent studies showing

that the death penalty has a deterrent effect. Cass R. Sunstein &

(2005)(taking the position that, because the death penalty is a

significant deterrent to murder, as recent studies establish,

including one leading study finding that each execution deters some

eighteen murders, the state is morally obliged to use it as a form

of punishment and a serious commitment to the sanctity of human

life compels it as a form of punishment); Joanna M. Shepherd,

-30-

recent empirical studies by economists have shown, without

exception, that capital punishment deters crime but noting that

there must be a threshold number of executions for the deterrence

effect to exist). These studies use a new type of information

death sentences handed out in the United States between 1977 and

1997 and finding that "[e]ach additional execution decreases

homicides by about five, and each additional commutation increases

homicides by the same amount, while one additional removal from

death row generates one additional homicide). A leading study used

county panel data from over 3,000 counties between 1977 and 1996.

Econ. Rev. 344 (2003). The authors found that the murder rate is

significantly reduced by both death sentences and executions and

that, on average, each execution results in eighteen fewer murders.

Another study concluded that the murders of both African-American

and white victims decrease after executions, suggesting that

capital punishment benefits people of all races. Joanna M.

-31-

that each execution results in, on average, three fewer murders and

the death penalty’s deterrence effect extends to crimes of passion

and murders by intimates). The trial court properly summarily

denied the newly discovered evidence claim.

Rutherford filed a 3.800(a) motion to correct illegal

sentence, arguing that the death sentence in his case was an

illegal sentence based on the ABA report. Rule 3.800(a) does not

apply to capital cases. Rule 3.851 is the exclusive rule governing

all motions in capital cases. The trial court properly granted the

State’s motion to strike.

The scope provision of the rule of criminal procedure

governing capital cases, Rule 3.851(a), provides:

This rule shall apply to all motions and petitions for

any type of postconviction or collateral relief brought

by a prisoner in state custody who has been sentenced to

death and whose conviction and death sentence have been

affirmed on direct appeal. It shall apply to all

postconviction motions filed on or after October 1, 2001.

Motions pending on that date are governed by the version

of this rule in effect immediately prior to that date.

This rule is the exclusive rule for seeking any type of relief

in capital cases.

The rule of criminal procedure governing Correction,

Reduction, and Modification of Sentences, in non-capital sentences,

-32-

rule 3.800, provides:

(a) Correction. A court may at any time correct an

illegal sentence imposed by it, or an incorrect

calculation made by it in a sentencing scoresheet, or a

sentence that does not grant proper credit for time

served when it is affirmatively alleged that the court

records demonstrate on their face an entitlement to that

relief, provided that a party may not file a motion to

correct an illegal sentence under this subdivision during

the time allowed for the filing of a motion under

subdivision (b)(1) or during the pendency of a direct

appeal.

Criminal Procedure 3.800(b), a motion to correct a sentencing

So.2d 1012, 1020, 1020 n.5 (Fla. 1994)(rejecting a claim that

784, 794, 794 n.7 (Fla. 1992).

Even if 3.800(a) applied to capital cases, Rutherford cannot

meet the requirements to file such a motion. Rutherford’s sentence

is not an illegal sentence as the term is defined by this Court.

An illegal sentence is “one that no judge under the entire body of

(Fla. 2001), and noting that there are few claims that come within

the illegality contemplated by the rule). The Florida Supreme

Court and the United States Supreme Court have repeatedly upheld

-33-

has “rejected the claim that the death penalty system is

unconstitutional as being arbitrary and capricious because it fails

to limit the class of persons eligible for the death penalty”);

statute, requiring the finding of aggravating and mitigating

(1976)(upholding constitutionality of Florida's death penalty

statute against multiple challenges). A death sentence is not an

illegal sentence.

Additionally, Rutherford’s particular death sentence is not an

“illegal sentence”. Not only has this Court upheld the

constitutionality of Florida’s death penalty in general in numerous

cases, but this Court has already upheld Rutherford’s own death

855-857 (Fla. 1989)(addressing arguments that the trial court

improperly considered Rutherford's lack of remorse in making the

finding of heinous, atrocious, and cruel; heightened premeditation

required for CCP; the trial court did not consider mitigating

evidence; improperly counted the aggravating and mitigating

circumstances rather than weighing them and the trial court’s use

of testimony that the victim was afraid of the defendant to support

its CCP finding). Indeed, the Florida Supreme Court even addressed

-34-

Rutherford’s thirty-year sentence imposed for the armed robbery

legal and has been held to be so by this Court.

Furthermore, the ABA report did not declare Florida’s death

penalty statute unconstitutional. The ABA is a professional

organization, not a court. It has no power to declare any statute

unconstitutional. The ABA report merely made recommendations that

would, in their opinion, improve the system. Rutherford’s death

sentence is not an illegal sentence.

Moreover, the error complained of is not apparent from the

of sentencing a defendant as a habitual offender when the requisite

sequential felonies do not exist “may be corrected as an illegal

sentence pursuant to rule 3.800(a) so long as the error is apparent

from the face of the record.”). Indeed, the “evidence” relied on

to support the “illegal sentence” claim is not in the record at

all, it depends entirely on an ABA report released in 2006.

Counsel argues that there must be some means of presenting his

constitutional challenges to the statute after a warrant is signed.

No, there does not. That is the entire point of procedural bars.

Procedural bars are a statement that it is too late to raise a

particular claim. Basically, counsel is seeking to end run the

procedural bar against raising constitutional challenges in

2000)(concluding that a “rule 3.800(a) motion to correct an illegal

sentence is not the proper vehicle for challenging a sentence on

the basis that it violates the constitutional prohibition against

cruel and unusual punishment.”). Even when courts find merit to

the claim, they do not permit non-capital defendants to raise such

303 (Fla. 3d DCA 2005)(agreeing, while sympathizing with the

defendant's argument that the sentence imposed was disproportionate

to the crime for which he was convicted, with the Fourth District’s

that “[a] rule 3.800(a) motion to correct an illegal sentence is

not the proper vehicle for challenging a sentence on the basis that

it violates the constitutional prohibition against cruel and

unusual punishment.”).

states:

(2) No motion shall be filed or considered pursuant to

this rule if filed beyond the time limitation provided in

-35-

postconviction litigation, much less after a warrant has been

signed, by using a 3.800(a) motion.

Counsel also argues that non-capital defendants are being

treated preferentially because, under rule 3.800(a), non-capital

defendants may raise a challenge to their sentences at any time,

but capital defendants may not. This is simply not true. Noncapital

defendants may not use 3.800(a) to raise Eighth Amendment

(Fla. 1999), that non-capital defendants get preferential treatment

regarding attorney negligence. This is not accurate. Both capital

defendants and non-capital defendants are now protected by their

subdivision (d)(1) unless it alleges that

. . . .

(C) postconviction counsel, through neglect, failed to

file the motion.

The rule governing non-capital defendants, Rule 3.850(b)(3) states:

(b) Time Limitations. A motion to vacate a sentence that

exceeds the limits provided by law may be filed at any

time. No other motion shall be filed or considered

pursuant to this rule if filed more than 2 years after

the judgment and sentence become final in a noncapital

case or more than 1 year after the judgment and sentence

become final in a capital case in which a death sentence

has been imposed unless it alleges that

....

(3) the defendant retained counsel to timely file a 3.850

motion and counsel, through neglect, failed to file the

motion.

-36-

seek belated postconviction relief if they establish attorney

negligence. While neither capital or non-capital defendants will

receive a second round of review in federal habeas court, both will

receive a first round of state collateral review regardless of

their attorney’s negligence. Both are treated equally.

decided in 1972. Rule 3.851 was first enacted in 1987 and, by its

terms, applies to all motions filed “on or after October 1, 2001”.

If this Court or the United States Supreme Court ever holds that

Florida’s death penalty statute is unconstitutional, as the Supreme

L.Ed.2d 346 (1972), the proper vehicle for a capital defendant to

13 Rule 3.851(d)(2)(B) states:

(2) No motion shall be filed or considered pursuant to

this rule if filed beyond the time limitation provided in

subdivision (d)(1) unless it alleges that

(B) the fundamental constitutional right

asserted was not established within the period

provided for in subdivision (d)(1) and has

been held to apply retroactively, or

-37-

court properly struck the 3.800(a) motion as an unauthorized

pleading. For all of these reasons, Rutherford is not entitled to

any relief on his first claim.

-38-

ISSUE II

WHETHER THE TRIAL COURT PROPERLY SUMMARILY

DENIED THE CLAIM THAT FLORIDA’S CLEMENCY

PROCESS VIOLATES THE EIGHTH AMENDMENT?

Rutherford asserts Florida’s clemency process violates the

Eighth and Fourteenth Amendments. First, the Eighth Amendment does

not apply to clemency proceedings. It is the Due Process Clause

that governs clemency proceedings and it requires only minimal due

process. Rutherford was afforded all the process he was due, and

more, in his first clemency proceeding. He was given an

opportunity to be heard which minimal due process requires. And he

was represented by counsel which minimal due process does not

require. Rutherford’s complaints relate to his second clemency

petition. Rutherford has no due process rights regarding a second

clemency petition. The trial court properly summarily denied the

due process claim.

The trial court’s ruling

The trial court ruled:

Defendant claims Florida’s clemency process is arbitrary

and capricious and violates the Eighth and Fourteenth

Amendments to the United States Constitution. Defendant

states the ABA Report demonstrates the arbitrariness and

capriciousness of the clemency process as it pertains to

death row inmates. (Motion to Vacate p. 41-43).

Defendant asserts the clemency process fails to fulfill

its critical function of “providing a safety net.” (Huff

Hrg. Tr. 30:2-3). Defendant points out that there are

“no rules or guidelines “delineating the factors that the

Board should consider. . .”” (Motion to Vacate p. 41).

Given the lack of guidelines, Defendant argues his second

-39-

clemency petition was dismissed based on the lack of

understanding as to “who is the proper party to request

clemency” and “what factors “matter” in a clemency

process. (Motion to Vacate p. 42).

This Court recognizes Defendant is asserting two

claims, the first of which is a broad due process

violation claim with regards to the denial of clemency as

it applies to death row inmates based upon the ABA Report

findings and recommendations. However, Article IV,

Section 8(a) of the Florida Constitution vests the power

clemency process is strictly an executive branch function

and defining the nature of the Governor’s clemency power

and explaining the clemency process in capital cases).

Therefore, this Court will not analyze matters that

are within the sound discretion of the executive branch

So.2d 561, 562-63 (Fla. 1976), “[t]his Court has always

viewed the pardon powers expressed in the Constitution as

being peculiarly within the domain of the executive

branch of government.”).

The Supreme Court of Florida has held that Florida’s

clemency process does not violate the Due Process and

Equal Protection Clauses of the United States and Florida

As to Defendant’s remaining claim regarding the

dismissal of Defendant’s second clemency petition, he

fails to establish a due process violation. The

substitute procedural safeguards Defendant claims he was

denied upon the dismissal of his second petition were

afforded to him when he was given opportunity to be heard

and was represented by counsel at his first clemency

hearing. Defendant fails to establish an entitlement to

a second clemency proceeding.

Accordingly, this Court finds no due process

violation and no merit to Defendant’s clemency claim, and

therefore, Claim II is denied.

(Order at 7-9).

-40-

Standard of review

The standard of review for a minimal due process claim is

So.2d 362, 365 (Fla. 2002)(stating that a sentencing claim raising

2001)(unpublished)(noting that Parole Commission’s compliance with

Cir. 2000).

Merits

Florida’s constitutional provision governing clemency

provides:

Except in cases of treason and in cases where impeachment

results in conviction, the governor may, by executive

order filed with the custodian of state records, suspend

collection of fines and forfeitures, grant reprieves not

exceeding sixty days and, with the approval of two

members of the cabinet, grant full or conditional

pardons, restore civil rights, commute punishment, and

remit fines and forfeitures for offenses.

(Fla. 2002)(denying a challenge to Florida’s clemency process as

procedural safeguards” in clemency proceedings in capital cases,

“to prevent them from becoming so capricious as to involve a state

-41-

official flipping a coin to determine whether to grant clemency.”

L.Ed.2d 387 (1998) (O'Connor, J., concurring in part and concurring

flipping a coin or an arbitrary denial of any clemency process as

U.S. at 289-90, 118 S.Ct. at 1253, 140 L.Ed.2d at 401-02 (O'Connor,

J., concurring). Justice Stevens gave examples such as bribery,

personal or political animosity, or the deliberate fabrication of

(Stevens, J., concurring and dissenting). Rutherford makes no

allegation of coin tossing, bribery, personal or political

animosity, or the fabrication of false evidence regarding the

Governor’s denial of his second clemency petition.

Rutherford had an opportunity to be heard and was represented

by counsel at his first clemency proceeding. Rutherford had an

opportunity to be heard on two occasions during his first clemency

process. Rutherford was given a personal opportunity to be heard

on January 12, 1990, in front of Commissioner Crockett of the

Florida Parole and Probation Commission, at Florida State Prison.

He was represented by counsel, Ted A. Stokes, at this hearing.

Rutherford also had a clemency hearing on June 19, 1990, at which

state clemency procedures generally comport with due process when

a prisoner is afforded notice and the opportunity to participate in

clemency procedures). Informal and nonadversarial procedures

comport with due process and may be even more informal in the

(2005)(determining what process is due an inmate under the

S.Ct. 893, 47 L.Ed.2d 18 (1976), and holding state's informal,

nonadversary procedures before placement of inmate in supermax

(1979)(concluding the level of process due for inmates being

considered for release on parole includes opportunity to be heard

and notice of any adverse decision).

-42-

he was represented by counsel Stokes. Rutherford’s first clemency

safeguards” required by due process in clemency proceedings in

Rutherford contends that Florida’s clemency process is not

adequate because clemency has not been granted to a death row

inmate since 1983. Complaints about the frequency with which the

Governor grants clemency do not establish a due process violation.

action claiming that Louisiana’s clemency process violates due

process where the death row inmate had full access to the clemency

process and concluding that complaints that the Louisiana Governor

rarely grants clemency to violent offenders does not state a claim

for a due process violation).

-43-

The argument that there are no rules delineating the factors

to be considered in clemency misses the point of equity-like

proceedings. The point is to let the decision maker consider

anything and everything he considers relevant without rules or set

procedures in an effort to provide justice without technical

853, 867, 122 L.Ed.2d 203 (1993)(discussing the history of clemency

and describing the clemency powers of the Executive as “holding a

court of equity in his own breast, to soften the rigour of the

general law, in such criminal cases as merit an exemption from

punishment” quoting 4 W. Blackstone, Commentaries and noting the

“looseness” of clemency ). Neither the ABA, nor the courts, have

the authority to tell the Governor what to consider substantively.

Courts simply are not authorized to review the substantive merits

§ 1983 action for failure to state a claim and observing that

courts are “not authorized to review the substantive merits of the

state clemency proceeding or the quality of the evidence considered

during those proceedings.”). Clemency is an act of grace, not a

mandate.

Rutherford complains of matters related to the second clemency

So.2d 243, 252-253 (Fla. 2001)(rejecting a due process claim

-44-

regarding being denied an attorney during his second clemency

1999)). While Rutherford was entitled to a minimum level of due

process at his first clemency proceeding, he is entitled to none

regarding his second clemency petition. The trial court properly

summarily denied this claim.

-45-

ISSUE III

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE

CLAIM THAT FLORIDA’S STANDARD FOR NEWLY DISCOVERED

EVIDENCE VIOLATES THE EIGHTH AMENDMENT?

Rutherford asserts Florida’s failure to recognize freestanding

claims of actual innocence violates the Eighth Amendment citing

This issue is procedurally barred. Moreover, there is no Eighth

Amendment requirement regarding actual innocence claims.

Furthermore, Florida has the equivalent of an actual innocence

claim. Florida uses the newly discovered evidence analysis. Thus,

the trial court properly summarily denied this claim.

The trial court’s ruling

The trial court ruled:

Defendant claims the State of Florida’s failure to

review freestanding claim of actual innocence violates

the Eighth Amendment. Defendant asserts that this Court

must establish an actual innocence exception which would

allow individuals the opportunity to defeat procedural

bars. (Motion to Vacate p. 45 and Reply to State’s

Response p. 9).

As noted by both counsel, the Supreme Court allows

a freestanding innocence claim by capital petitioners to

be brought in a federal habeas petition. Currently state

courts are not constitutionally required to recognize

2006 WL 2425522 (M.D. Fla., August 21, 2006).

However, Florida does allow a defendant to raise a

claim of actual innocence under the standard announced in

denied.

counsel, the Supreme Court allows a freestanding innocence claim by

capital petitioners to be brought in a federal habeas petition.”

The State does not agree. The Supreme Court has never reached the

issue.

-46-

Standard of review

2005)(unpublished opinion)(reviewing argument that sentence

F.3d 1442, 1447 (11th Cir. 1997)).

Procedural bar

This issue is procedurally barred. Rutherford is arguing what

that Eighth Amendment requires which is normally a direct appeal

issue. Even if he could not raise the matter until he had an

actual innocence claim in postconviction, Rutherford should have

raised this issue the prior successive 3.851 motion litigation at

the latest. This issue is procedurally barred.

Merits

address whether the constitution requires that a capital defendant

be allowed to present a freestanding claim of actual innocence.

-47-

argues that he has shown freestanding innocence and that

as a result his imprisonment and planned execution are

capital case a truly persuasive demonstration of ‘actual

innocence’ made after trial would render the execution of

a defendant unconstitutional, and warrant federal habeas

relief if there were no state avenue open to process such

a claim.” 506 U.S., at 417, 113 S.Ct. 853; see also id.,

at 419, 113 S.Ct. 853 (O'Connor, J., concurring)(“I

cannot disagree with the fundamental legal principle that

executing the innocent is inconsistent with the

Constitution”). “[T]he threshold showing for such an

assumed right would necessarily be extraordinarily high,”

the Court explained, and petitioner's evidence there fell

“far short of that which would have to be made in order

to trigger the sort of constitutional claim which we have

assumed, arguendo, to exist.” Id., at 417, 418-419, 113

S.Ct. 853; see also id., at 427, 113 S.Ct. 853 (O'Connor,

J., concurring)(noting that because “[p]etitioner has

failed to make a persuasive showing of actual innocence,”

“the Court has no reason to pass on, and appropriately

reserves, the question whether federal courts may

entertain convincing claims of actual innocence”). House

urges the Court to answer the question left open in

claims are possible but also that he has established one.

We decline to resolve this issue. We conclude here, much

freestanding innocence claim would require, this

petitioner has not satisfied it. To be sure, House has

cast considerable doubt on his guilt-doubt sufficient to

however, the Court described the threshold for any

hypothetical freestanding innocence claim as

“extraordinarily high.” 506 U.S., at 417, 113 S.Ct. 853.

freestanding claims and then establishing the gateway

-48-

House's showing falls short of the threshold implied in

to decide the standard of proof for an actual innocence exception;

they refused to decide whether an actual innocence exception

October 2, 2006)(holding that actual innocence is not an

independently cognizable claim in federal habeas and following

prior Fifth Circuit precedent because the Supreme Court’s decision

possibility of stand-alone actual-innocence claims”, “did not

change the law” so “this panel may not entertain Foster's

Cir. September 26, 2006)(noting that the viability of an actual

Court “did not reach it.”). The Eighth Amendment does not

currently have an actual innocence exception. So, the federal

constitution does not currently require state courts to recognize

an actual innocence claim.

But Florida courts do allow claims of actual innocence.

Rutherford cites no Florida case holding, or even implying, that

claims of newly discovered evidence of innocence may not be brought

in Florida and there is Florida Supreme Court precedent directly to

federal habeas cases. It is a means of overcoming a procedural bar

for failure to exhaust a claim in state court before raising the

*2 (11th Cir. September 26, 2006)(asserting an actual innocence

claim as a gateway to reach the other claims that petitioner failed

to exhaust in state court).

exemption to the one year time limitation based on “the facts on

which the claim is predicated were unknown to the movant or the

movant's attorney and could not have been ascertained by the

exercise of due diligence”); Rule3.850(b)(1),

Fla.R.Crim.Pro,(providing for an exemption to the two year time

limitation based on “the facts on which the claim is predicated

were unknown to the movant or the movant's attorney and could not

ordinarily, a 3.850 motion must be brought within two years but a

defendant may file a 3.850 motion later if the claim is based upon

newly discovered evidence).

-49-

a claim of actual innocence is raised as a claim of newly

591 So.2d 911 (Fla. 1991). Indeed, the standard in Florida for

raising an actual innocence claim is more liberal than federal

courts. Florida has no equivalent concept to the exhaustion

criminal procedure specifically provide for an exemption to the

time limitations for newly discovered evidence in both capital and

-50-

innocence at any time in Florida provided he does so within a year

of discovering the new evidence. Whether and when a claim of

actual innocence requires more judicial proceedings may remain “a

contentious subject” in federal habeas courts, but it is not a

claim of actual innocence (despite a formal conviction) requires

more judicial proceedings remains a contentious subject.”).

Counsel argues that Florida needs to recognize an actual

innocence claim to lift procedural bars. Counsel misunderstands

the concept of freestanding versus gateway claims of actual

September 26, 2006)(explaining the difference between a

freestanding claim of actual innocence and a gateway claim of

actual innocence). An actual innocence claim is a claim that the

execution of an innocent person violates the Eighth Amendment even

if a conviction was the product of a fair trial; whereas, a gateway

claim of innocence is a claim that the conviction of an innocent

person is constitutionally impermissible when the conviction was

the product of an unfair trial. If a court recognizes a

freestanding claim of innocence, then a gateway claim is not

needed. Such a defendant does not need to end run any procedural

he does not), he would be granted a new trial and all the other

-51-

issues related to his first trial, procedurally barred or not,

would be rendered moot by the new trial.

Furthermore, Rutherford was allowed to present this actual

innocence claim. Rutherford asserted a claim of actual innocence

in his first successive 3.851 motion as Claim V. The State did not

argue that no such claim exists in Florida in its response to the

The trial court, in rejecting Rutherford’s actual innocence claim

in the prior litigation, ruled:

In his final claim, Defendant asserts Heaton’s

confession to Gilkerson supports his claim of actual

innocence. For the reasons set forth in claim IV above,

this claim must also fail. Defendant has failed to

demonstrate that the proffered newly discovered evidence

of inconsistent statements is of such a nature to give

rise to a colorable claim of innocence and a possibility

423-424, 114 S.Ct. 853, 872, 122 L.Ed.2d 203

(1993)(upholding the denial of actual innocence claims

based on such last minute affidavits in capital case).

This Court addressed the actual innocence claim in a footnote:

Based upon our conclusion that Heaton’s statements do not

establish either that she committed the murder or that

Rutherford is innocent, we conclude that the circuit

court did not err in denying an evidentiary hearing on

Rutherford’s claim that his conviction and sentence of

death are unconstitutional because he has presented

evidence demonstrating his actual innocence.

Neither the State, nor the trial court, nor this Court refused to

address his claim. Neither court hinted, in any manner, that such

-52-

a claim was not cognizable in Florida courts. His claim that

Florida courts do not allow claims of actual innocence is clearly

refuted by the fact that his claim of actual innocence was decided

on the merits by both the trial court and this Court. The trial

court properly summarily denied the claim that Eighth Amendment has

an actual innocence exception.

-53-

ISSUE IV

WHETHER THE TRIAL COURT PROPERLY SUMMARILY

DENIED THE NEWLY DISCOVERED EVIDENCE OF

INNOCENCE CLAIM BASED ON THE AFFIDAVIT OF JAIL

INMATE ADKISON? (Restated)

Rutherford, relying on a last minute affidavit of jail inmate

Adkison, asserts there is newly discovered evidence of his

innocence and therefore, he is entitled to a new trial.

Rutherford’s claim should be denied as procedurally barred because

the substance of his newly discovered evidence claim has already

been addressed by the trial court and this Court and rejected by

both. The substance of the Adkison’s affidavit is the same as the

prior affidavit, the Gilkerson affidavit. Moreover, all the

reasons given by this Court in its opinion rejecting the earlier

newly discovered evidence claim are equally applicable to this

newly discovered evidence claim. This affidavit would not produce

an acquittal on retrial, anymore than the earlier affidavit would,

as this Court previously concluded. The trial court properly

summarily denied the newly discovered evidence claim.

Standard of review

The standard of review for a newly discovered evidence claim

(Fla. May 18, 2006)(noting that “absent an abuse of discretion, a

trial court's decision on a motion based on newly discovered

evidence, including a witness's newly recanted testimony, will not

-54-

that a motion for a new trial based on newly discovered evidence is

the denial of a motion for a new trial based on newly discovered

trial based on newly-discovered evidence is reviewed for abuse of

discretion). Where no evidentiary hearing is held below, the court

must accept the defendant's factual allegations to the extent they

(Fla. 2002).

Trial

Mary Heaton testified at trial for the State during the guilt

phase. (T. Vol. II 397- Vol. III 424). Mary Heaton lived in

Milton. (T. Vol. II 398). She testified that Rutherford came over

to her house about 11:30 or 12:00 on August 22, 1985. (T. Vol. II

399). Rutherford was driving a black van and was by himself. (T.

Vol. II 399). Rutherford had two sliding glass doors with him.

(T. Vol. II 399). She, her father, her sister and her sister’s two

children lived at the house. (T. Vol. II 400). Rutherford asked

her father if he wanted the two sliding glass doors. (T. Vol. II

-55-

400). Rutherford asked her to fill out a check but she could not

because she could not read or write. (T. Vol. II 400). She refused

to fill out the check because she did not know how to. (T. Vol.

III 401). Heaton testified that Rutherford then asked if her

niece, Elizabeth Ward, was at home. (T. Vol. III 401). Rutherford

asked Ms. Heaton to go find her niece, which she did. (T. Vol. III

401). Her niece was in a van and Rutherford went out to speak with

the niece while Ms. Heaton returned to the house (T. Vol. III 401).

Rutherford told Ms. Heaton that he wanted to pay her the money he

owed her. (T. Vol. III 402). Rutherford and Heaton went to the

Santa Rosa State Bank in Pace. (T. Vol. III 402). Rutherford gave

her the check and she attempted to cash the check but it was not

signed. (T. Vol. III 402). Heaton identified State’s Exhibit #9 as

the check she had attempted to cash. (T. Vol. III 402). The Santa

Rosa State Bank was in Pea Ridge near East Spencer Field Road. (T.

Vol. III 403). The bank, however, would not cash the check because

it was not signed at the bottom. (T. Vol. III 404,405). Heaton

identified State’s Exhibit #10 as her driver’s license. (T. Vol.

III 404). She had presented her license to the teller. (T. Vol.

III 404). She left the bank and returned to Rutherford’s van and

informed him that the bank refused to cash the check. (T. Vol. III

405). They drove to Center Field Road where Rutherford told her to

sign the check. (T. Vol. III 405). She refused. (T. Vol. III 405).

Rutherford had the check stub, the blue billfold, and the credit

-56-

card which he carried into the woods. (T. Vol. III 405). She

testified that Rutherford signed her name. (T. Vol. III 403).

On cross, she testified that it was the bottom of the check

that was not signed. (T. Vol. III 407). Rutherford signed the

check but not in her presence. (T. Vol. III 408). They returned to

the bank in Pace. (T. Vol. III 408). She did not know the bank

teller. (T. Vol. III 409). This time, the bank cashed the check

and gave her the money in hundred dollar bills. (T. Vol. III 409).

She did not count the money. (T. Vol. III 409). She returned to

the van and Rutherford gave her five hundred dollars. (T. Vol. III

410). Rutherford then drove her back home. (T. Vol. III 410). She

bought a green ‘74 Mustang that day. (T. Vol. III 410). She went

to Mr. Smith’s car lot and paid $350.00 down on the car. (T. Vol.

III 411). She purchased car insurance and some clothes with the

remainder of the money. (T. Vol. III 411). It was about two

o’clock when she returned to her home. (T. Vol. III 410). She did

not see Rutherford anymore that day. (T. Vol. III 410). She had

never cashed a check before. (T. Vol. III 410). She testified that

she had been in a mental institution for five months. (T. Vol. III

411). She was put in the Santa Rosa Hospital against her will. (T.

Vol. III 412). She testified that she had a nervous breakdown and

a stroke and brain damage. (T. Vol. III 412). It caused her to

have difficulty distinguishing between fact and fantasy. (T. Vol.

III 412). She was having trouble distinguishing between fact and

-57-

fantasy on August 22. (T. Vol. III 412). She could remember some

things and some things she could not but she was sure what happened

on August 22, 1985. (T. Vol. III 412). She admitted that it would

be difficult for her to distinguish between one check and another

because she cannot read. (T. Vol. III 414). She did not have a

checking account and was not familiar with how checks worked. (T.

Vol. III 414). She admitted telling Deputy Jesse Cobb that she had

signed the check in her deposition and that she was lying when she

said that. (T. Vol. III 419-420). Rutherford had misspelled her

name when he signed it on the back of the check. (T. Vol. III 420-

421). She had originally told Deputy Cobb on August 23, that

Rutherford signed the check. (T. Vol. III 422).

Elizabeth Ann Ward, Ms. Heaton’s niece, testified. (T. Vol.

III 425). She had known Rutherford for about a year or a year and

a half. (T. Vol. III 426). She identified the check. (T. Vol. III

426). She testified that she wrote part of the check. (T. Vol. III

426). She was cleaning her grandfather’s bus when her aunt told

her that Rutherford wanted to talk to her. (T. Vol. III 427). It

was between one o’clock and two o’clock but she was not certain.

(T. Vol. III 427). Her aunt went in the house. (T. Vol. III 428).

Rutherford handed her a checkbook in a wallet. (T. Vol. III 428).

Rutherford asked her if she knew how to fill out a check and she

responded no, but if you show me, I could. (T. Vol. III 428). She

-58-

wrote out the check but refused to sign it. (T. Vol. III 428). She

wrote out the date as August 21 because she thought that was the

correct date. (T. Vol. III 428). She wrote out Mary Frances

Heaton. (T. Vol. III 428). She wrote $2,000 and wrote out two

thousand and no cents and wrote personal loan. (T. Vol. III 429).

Rutherford told her that he would give her $500.00 if she wrote out

the check. (T. Vol. III 429). She did not sign the bottom of the

check or the back of the check. (T. Vol. III 429). Rutherford

signed the back of the check. (T. Vol. III 430). Rutherford and

her aunt then left to go take care of some business. (T. Vol. III

430). She did not see Rutherford again that day. (T. Vol. III

431). She saw her aunt get out of Rutherford’s van about thirty

minutes or an hour later. (T. Vol. III 431). Rutherford then left.

(T. Vol. III 431). She testified that her aunt gave her $5.00 that

she owed her. (T. Vol. III 432).

Ms. Jamie Peleggi, the teller at the bank, testified. (T. Vol.

III 435). She was employed as a bank teller at the Pace branch of

the Santa Rosa State Bank on August 22, 1985. (T. Vol. III 436).

She did not know Mary Heaton. (T. Vol. III 436). She testified

that Mary Heaton was a customer of the bank on August 22, 1985. (T.

Vol. III 437). Mary Heaton came to the bank twice on that day -

first at approximately 1:15 or 1:30 and again at approximately two

o’clock. (T. Vol. III 437,438). She testified that Mary Heaton

presented a $2000 dollar check to be cashed. (T. Vol. III 437).

-59-

Ms. Peleggi identified State’s Exhibit #9 as the check. (T. Vol.

III 437). Ms. Peleggi testified that she noticed that Stella

Salamon’s signature was missing. (T. Vol. III 437). She refused to

cash the check. (T. Vol. III 438). The bottom signature line of

the check was missing. (T. Vol. III 438). Ms. Peleggi testified

that Heaton left the bank and then returned. (T. Vol. III 439).

She cashed the check at exactly 2:02 according to her list of

transactions. (T. Vol. III 439). She had written Heaton’s driver’s

license information on the check. (T. Vol. III 439). The check was

on Stella Salamon’s account and it was for $2000.00 dollars (T.

Vol. III 440). She did not verify the signature on the check as

the victim’s by comparing it against the signature card on file

because the signature cards are located in the main branch in

Milton. (T. Vol. III 440). The teller testified that she had to go

to the vault to get the large bills to cash the check. (T. Vol. III

440). She gave Heaton the two thousand dollars in one hundred

dollar bills. (T. Vol. III 440). So, she gave Heaton twenty one

hundred dollar bills. (T. Vol. III 440). She did not know the

victim, Stella Salamon. (T. Vol. III 441). The bank teller

testified that she did not see anyone with Ms. Heaton. (T. Vol. III

441).

On cross, the teller testified that she did not see who signed

the check. (T. Vol. III 441). She did not see Rutherford sign the

check. (T. Vol. III 442).

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Affidavit

Rutherford attached the following affidavit to his amended

motion:

1. My name is Brian Adkison. I currently reside at the Walton

County Jail in DeFuniak Springs, Florida. I have known

Elizabeth Bivin for years, and we were neighbors in a trailer

park in Crestview, Florida in the late 1990s.

2. During the time that Elizabeth Bivin was my neighbor, I

visited her home on many occasions. I remember her aunt Mary

staying with her from time to time. Mary was always taking

pills, rocking, and talking. She often said, "Don't mess with

me because I've killed people before." She mentioned killing

a lady in Milton by beating her to death, with some sort of

tool.

3. When Mary would start talking about this, Liz would tell her

to shut up and quit running her mouth, Liz did not want her

talking about this to me. But, one time when Liz wasn't

around to stop her, Mary told me some details about the lady

she'd beaten to death and how it happened. She told me that

she beat the old lady to death when trying to rob the lady of

money and medication. Mary said something about how she had

been at the old lady's house before, so she knew what she had.

There had been a plan to get the stuff. But when it went

down, I guess it went wrong. I remember very clearly Mary

prior claim of newly discovered evidence, litigated earlier this

year, Gilkerson stated that "[i]n the early 1990s, the three of us

lived together in a trailer. One evening, Mary and I were alone at

the trailer and I asked why she seemed so ‘crazy', . . . She told

me that she once killed an old lady with a hammer and made it look

like A.D. Rutherford committed the crime."

Investigator Michael Glantz stated that Mary Frances Heaton, when

confronted with Alan Gilkerson’s statements, “told me that she was

present at the victim’s house on the day of the crimes and she

claimed to have witnessed Mr. Rutherford striking the fatal blow.”

Declaration of Michael Glantz Appendix K paragraph 9.

Defendant has failed to allege availability as required pursuant to

Florida Rule of Criminal Procedure 3.851(e)(2)(c)(ii).

-61-

saying to me: "I beat her to death so she couldn't talk." You

The trial court’s ruling

The trial court ruled:

Defendant claims that newly discovered evidence

demonstrates that Mr. Rutherford's capital conviction and

death sentence are constitutionally unreliable in

violation of the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution.

Defendant claims that a newly discovered witness

gives corroborating evidence that when considered

cumulatively "would probably produce an acquittal if a

re-trial were granted, but would certainly result in a

sentence of less than death." (Motion to Vacate p. 7).

Defendant avers that Brian Adkison's corroborating

recites the following in his affidavit:

My name is Brian Adkison. I currently reside

at the Walton County Jail in DeFuniak Springs,

Florida. I have known Elizabeth Bivin for

years, and we were neighbors in a trailer park

in Crestview, Florida in the late 1990s.

During the time that Elizabeth Bivin was

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my neighbor, I visited her home on many

occasions. I remember her aunt Mary staying

with her from time to time. Mary was always

taking pills, rocking, and talking. She often

said, "Don't mess with me because I've killed

people before." She mentioned killing a lady

in Milton by beating her to death, with some

sort of tool.

When Mary would start talking about this,

Liz would tell her to shut up and quit running

her mouth, Liz did not want her talking about

this to me. But, one time when Liz wasn't

around to stop her, Mary told me some details

about the lady she'd beaten to death and how

it happened. She told me that she beat the

old lady to death when trying to rob the lady

of money and medication. Mary said something

about how she had been at the old lady's house

before, so she knew what she had. There had

been a plan to get the stuff. But when it

went down, I guess it went wrong. I remember

very clearly Mary saying to me: "I beat her to

death so she couldn't talk." You don't forget

when someone tells you something like that.

(Adkison Affidavit).

Absent an evidentiary hearing, this Court is

required to accept the allegations contained in the

So.2d 948, 956 (Fla. 2002). However, Defendant's claim

fails because he has not made a showing of any new facts

not previously considered under the standard announced in

Here, Defendant has presented this Court with

nothing new. Defendant asserted his actual innocence in

his previous successive postconviction motion based on

similar facts that are now asserted in this newest

affidavit. Two things stand out in this Court's review

of this newly submitted affidavit. Initially the Court

notes that the facts asserted are less explicit than the

previously considered facts in Gilkerson's Affidavit. A

review of Gilkerson's affidavit shows that he claimed

Heaton told him she killed a lady with a hammer and

framed the Defendant.

Adkison states similar facts as Gilkerson with the

exception that he refers to Mary Heaton using a tool and

no mention is made of Heaton framing the Defendant.

Secondly, taking these facts as asserted as true and

considering them with his previously submitted witness'

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affidavit, this Court finds Defendant has failed to

present any new facts or information that have not been

previously considered and rejected both by this Court and

1112 (Fla. 2006).

comparative weighing of this alleged newly discovered

evidence, affidavit(s) taken independently or

cumulatively with the knowledge that Heaton admittedly

suffers from a mental disorder, and the state's evidence

introduced at trial including Defendant's fingerprints,

along with his self-incriminating statements made to four

witnesses, "three of whom he told that he was going to

kill the victim, and the fourth one whom he told after he

killed the victim that he had killed the victim, are

insufficient to create a probability of acquittal. (Huff

Hrg. Tr. 35:10-13).

As pointed out by the State at the hearing, neither

Mary Heaton nor her niece has come forward to recant

their trial testimony. (Huff Hrg. Tr. 70:4-5). As

recognized by the Rutherford Court, Heaton suffered from

mental difficulties that impaired her ability to

differentiate fact from fantasy and, therefore, "a

reasonable juror's determination of Rutherford's guilt

newest affidavit which in itself points out "Mary was

always taking pills, rocking, and talking" further lends

to the determination that the affidavit(s) either taken

independently or cumulatively is insufficient to create

a probability of an acquittal on re-trial. Thus, this

claim is denied.

(Order at 10-13)(footnote included but renumbered).

Procedural Bar

law which have been decided on appeal become the law of the case,

precluding relitigation of the issue). Rutherford’s claim should

be denied as procedurally barred because the substance of his newly

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discovered evidence claim has already been rejected by this Court.

This Court rejected Rutherford’s claim because “a reasonable

juror's determination of Rutherford's guilt would not be shaken by

these affidavits” and concluding there would be “no probability of

an acquittal or sentence less than death” because “Heaton's

presence at the crime scene does nothing to reduce Rutherford's

culpability for the murder, and is irrelevant to any aggravating or

(Fla. 2006). A capital defendant may not just get another person

to sign a new affidavit, the substance of which is the same as the

prior affidavit, and then relitigate the same issue. The reasoning

of this Court, in rejecting the prior claim, did not depend on the

particular person who signed the affidavit. Indeed, Adkison’s

affidavit is less explicit than Gilkerson’s. Gilkerson stated that

Heaton told him she killed a lady with a hammer and framed

Rutherford. These details are not in Adkison’s affidavit which

merely refers to a tool. This claim is procedurally barred.

Evidentiary hearing

No evidentiary hearing was required. As this Court noted in

its earlier opinion:

This Court has never adopted a per se rule requiring an

evidentiary hearing in a successive postconviction motion

simply because an admission by another person comes to

light at virtually the last minute. Although an

evidentiary hearing is required on an initial

postconviction motion in a capital case on claims

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requiring a factual determination, see Fla. R.Crim. P.

3.851(f)(5)(A)(i), a successive postconviction motion may

be denied without an evidentiary hearing if “the motion,

files, and records in the case conclusively show that the

movant is entitled to no relief.” Fla. R.Crim. P.

3.851(f)(5)(B).

This Court noted that conducting an evidentiary hearing “would

evidentiary hearing regarding this latest affidavit would be an

equally futile exercise. All that the latest affidavit establishes

is that Mary Heaton made additional contradictory statements. Mary

Heaton’s mental problems were established at trial when she

admitted to the jury that she had been Baker Acted and that she had

had problems telling fact from fiction. Indeed, the affidavit

itself reflects “Mary was always taking pills, rocking, and

talking.” No evidentiary hearing was warranted. The trial court

properly denied this claim without conducting an evidentiary

hearing.

Merits

Supreme Court addressed the two-prong test for determining whether

a conviction should be set aside on the basis of newly discovered

evidence: (1) 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 the defendant or his

Florida Supreme Court has already rejected the claim that the

evidence in Gilkerson’s affidavit would produce an acquittal. Of

course, the Court normally considers the newly discovered evidence

cumulatively, but not when the Court has already addressed the

evidence and rejected the claim. Gilkerson’s affidavit is not

-66-

counsel could not have known [of it] by the use of diligence, and

(2) the newly discovered evidence must be of such nature that it

would probably produce an acquittal on retrial. To reach this

conclusion the trial court is required to consider all newly

discovered evidence which would be admissible at trial and then

evaluate the weight of both the newly discovered evidence and the

521.

In considering the second prong, the trial court should

initially consider whether the evidence would have been admissible

at trial or whether there would have been any evidentiary bars to

its admissibility. Once this is determined, an evaluation of the

weight to be accorded the evidence includes whether the evidence

goes to the merits of the case or whether it constitutes

impeachment evidence. The trial court should also determine

whether the 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

So.2d 512, 522, n.7 (Fla. 1998)(rejecting the argument that the

Court must consider all testimony previously heard at the 1986 and

1992 evidentiary hearings, even if the testimony had previously

been found to be barred or not to qualify as newly discovered

evidence and concluding “[w]e consider only that evidence found to

be newly discovered.”).

Gilkerson affidavit and is not conceding diligence regarding this

affidavit either. The State, in its earlier answer brief to the

Florida Supreme Court, stated:

The State did NOT concede due diligence. In its

pleadings and at the public records hearing, held on

December 13, 2005, the State declined to dispute the due

diligence prong, so that the due diligence witnesses

would not be necessary. The focus of the State's

response to the newly discovered evidence claim was that

the new evidence would be unlikely to produce an

acquittal on retrial. If an evidentiary hearing is

granted, the State will contest due diligence.

on Florida Supreme Court website). If an evidentiary hearing is

granted, the State will contest due diligence. But the critical

establish that Adkison’s affidavit is likely to result in an

acquittal in a retrial. The State will choose to focus on that

prong in its pleadings. This Court often does likewise when

(Fla. October 5, 2006)(declining to address the deficient

(Fla. 2005).

-67-

has not established his diligence in locating Brian W. Adkison.

543, 546 (Fla. 1998)(rejecting a claim that due diligence was

excused by the lack of funding available to fully investigate and

“[t]o withdraw or renounce formally and publicly.”). The witness

has to retract their prior trial testimony personally and formally

to be a true recantation. The danger of opposing counsel’s

“treacherous hyperbole” of referring to the Adkison’s affidavit as

App. 2005),

is that once the user gets into the habit of referring to

such a confidence as a “recantation” two or three times,

he has successfully scaled a linguistic plateau and the

presumptuous usage becomes a deceptively familiar

commonplace. At that point, the user can nonchalantly

invoke caselaw dealing with actual recantations and it

will seem, to the lazy ear at least, as if those

recantation cases are apposite to the case at hand. The

only place to stop such semantic slippage is before it

gets started. We are not in this case dealing with

anything that can fairly be termed a “recantation.” One

might readily ask, “If a witness renounces her trial

testimony, what difference does it make whether the

renunciation takes place in the courtroom or on a school

playground?” It makes a great deal of difference.

-68-

Assuming Rutherford could establish his diligence, he cannot

testimony, even if admissible as a statement against penal

interest, would not produce an acquittal at retrial. It is not

likely to produce an acquittal for three reasons. First, Heaton’s

trial testimony was corroborated by her niece’s testimony. Mary

Heaton’s trial testimony, that Rutherford came over to her house

and asked her, and then her niece to fill out the victim’s check,

was corroborated her niece. Her niece, Elizabeth Ward, has not

recanted her trial testimony. Neither Mary Heaton nor Elizabeth

Mary Heaton has not recanted. Rutherford has never obtained an

affidavit from Heaton herself stating that her trial testimony was

false.

-69-

testimony of three other witnesses that Rutherford told them of his

plan to commit this crime and a fourth witness that Rutherford

admitted to killing the victim with a hammer after the murder.

Rutherford’s statements to Harold Attaway that he planned to kill

a woman and place her body in her bathtub to make her death look

like an accident and to Sherman Pittman that he was going to get

money by forcing a woman to write him a check and then putting her

in the bathtub, and also to his uncle, Kenneth Cook, a week prior

to the murder, that he was going to knock an old lady in the head,

are not affected, in any way, by the affidavit. Nor is Johnny

Perritt, Jr.’s testimony that Rutherford told him he killed her

with a hammer and asked him to hold $1400.00, affected in any

manner. Lastly, it is also contradicted by the physical evidence

of Rutherford’s fingerprints and palm print in the bathroom. The

evidence of Rutherford’s guilt includes three sets of fingerprints

in the bathroom where the victim was beaten and drowned.

Rutherford’s three fingerprints were found on the handle of the

sliding door to the bathtub, another one of Rutherford’s

fingerprints was found on the tile wall of the bathtub, and his

palm print was found on the window sill inside the tub. As this

Court noted, in both the postconviction opinion and the opinion

earlier this year, there “was overwhelming evidence of Rutherford's

check because she could not read or write.

-70-

So.2d 1100, 1110 (Fla. 2006)(observing: “[i]n this case, there was

overwhelming evidence of Rutherford's guilt.”).

All the reasons given by this Court in its opinion rejecting

the earlier newly discovered evidence claim are equally applicable

to this newly discovered evidence claim. This Court, rejecting

Rutherford’s claim of newly discovered evidence based on the prior

affidavit, reasoned:

At trial, Heaton testified that between 11:30 a.m. and

12:00 p.m. on August 22, 1985, Rutherford came to her

home with a blank check from the victim. Heaton testified

that Rutherford asked her to fill out the check and that

when she told him that she did not know how to fill out

a check, he asked her niece Elizabeth Ward to do it for

Rutherford then went to the Santa Rosa Bank to cash the

check. Heaton acknowledged that she went inside the bank

alone and cashed the check. The check was made out to

Heaton in the amount of $2,000. Heaton denied endorsing

the check and testified that Rutherford signed her name

on the back of the check. Heaton also testified that

Rutherford signed Mrs. Salamon's name on the check but

that he did not sign the check in her presence. Heaton

stated that she received $500 from the cashed check. On

cross-examination, the defense established that at the

time of trial Heaton was residing in a mental institution

against her will, and that at the time of the murder she

had trouble distinguishing fact from fantasy.

Ward testified that Rutherford came to the home she

shared with Heaton and asked Ward to fill out the blank

check on the victim's account. Ward testified that she

filled out the check but refused to sign either Heaton's

name or Mrs. Salamon's name. Ward testified that she

witnessed Rutherford endorse the check, and that Heaton

later gave her $5 for filling out the check.

Other evidence against Rutherford included his

-71-

self-incriminating statements made to numerous

individuals about his involvement in the murder, evidence

of his fingerprints and palm prints in the bathroom where

the victim was found, and evidence impeaching

Rutherford's explanation why his prints were found in the

bathroom. One witness testified that Rutherford said he

planned to kill a woman and place her body in a bathtub.

Another witness testified that Rutherford said that he

would force a woman to write him a check and then put her

in a bathtub, and a third witness testified that

Rutherford said that he could get easy money by knocking

a woman he worked for in the head. A fourth witness

testified that Rutherford told him on the day of the

murder that he had killed “the old lady” by hitting her

in the head with a hammer, and then had put her in the

bathtub. Law enforcement officers testified that

Rutherford's fingerprints and palm prints were found in

the bathroom where the victim's body was found. In

response to this testimony, Rutherford explained that his

prints were found in the bathroom because, he claimed,

Mrs. Salamon had asked him to realign the shower door

because her nieces and nephews had knocked the door off

of the track. The State impeached this testimony by

proving that Mrs. Salamon did not have any nieces or

nephews, and that no young children had visited Mrs.

Salamon's home in the weeks prior to her murder.

Rutherford is not entitled to relief because the alleged

newly discovered evidence does not satisfy the second

prong of Jones in that Heaton's contradictory statements

are not such that, if presented to the jury, would

probably produce an acquittal on retrial.

Heaton's statements to Gilkerson and Glantz

concerning whether she committed the murder are

contradictory on their face. In her statement to

Gilkerson, Heaton confessed to killing Mrs. Salamon.

However, this confession is contradicted by her

subsequent statement to Glantz, in which she stated that

it was Rutherford who struck the fatal blow, killing Mrs.

Salamon. When viewed against the impeachment evidence

presented at trial concerning Heaton's mental problems

and difficulty distinguishing fact from fantasy, Heaton's

inconsistent statements to Gilkerson and Glantz would

only serve to impeach Heaton's credibility further.

Clearly, this evidence does not establish that Heaton

committed the crime or that Rutherford is innocent.

-72-

At most, these conflicting versions of events

suggest that Heaton's involvement in the crime may have

been greater than was presented at trial. Even assuming

that Heaton played a more significant role in the crime

than was presented at trial, this evidence fails to

satisfy the second prong of Jones when considered

cumulatively with the evidence presented at trial. First,

there is no probability that this evidence would produce

an acquittal on retrial. Although Heaton's statements

could be used to impeach her credibility and her

testimony at trial concerning her involvement in the

crime, these statements would not have contradicted or

provided an innocent explanation for any of the other

evidence presented at trial indicating that Rutherford

was the perpetrator. Nor would these statements have

affected Ward's uncontradicted testimony placing

Rutherford in possession of the victim's check.

Further, there is no probability that this evidence

would result in imposition of a sentence less than death

on retrial. In this case, there was overwhelming evidence

of Rutherford's guilt. Although the affidavits suggest

that Heaton may have had greater involvement in the

murder than she acknowledged at trial, her statements to

Gilkerson and Glantz do not warrant a reasonable belief

that Rutherford is less than wholly culpable for the

murder. Despite the fact that Heaton stated that she was

present at the time of the murder and when the victim's

belongings were buried, Heaton does not state that she

did anything to assist Rutherford in committing the

murder or in disposing of the victim's belongings. In

addition, Heaton's statements do not affect the

aggravating factors found by the trial court in this

case.

evidence is such that it could probably result in an acquittal or

a life sentence, we would have to consider the contents of each

affidavit in isolation from the other affidavit and also from the

evidence at trial. We decline to examine the alleged newly

So.2d at 1112. “Based on the overwhelming evidence of guilt

-73-

presented at trial, the contradictions in the Gilkerson and Glantz

affidavits, and the evidence in the record that Heaton has suffered

from mental difficulties that have impaired her ability to

differentiate fact from fantasy, a reasonable juror's determination

of Rutherford's guilt would not be shaken by these affidavits.”

All these reasons given by this Court in the opinion rejecting

the earlier newly discovered evidence claim apply equally to this

newly discovered evidence claim. Rutherford totally ignores this

Court’s reasoning on this claim. This affidavit would not produce

an acquittal on retrial anymore than the earlier affidavit would,

as both the trial court and this Court found. The trial court

properly summarily denied the newly discovered evidence claim.

-74-

ISSUE V

WHETHER THE TRIAL COURT PROPERLY SUMMARILY

DENIED THE ACTUAL INNOCENCE CLAIM? (Restated)

Rutherford, based on the affidavits of Adkison and Gilkerson,

-, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). To present a viable claim

of actual innocence, Rutherford must present reliable evidence of

innocence such as scientific evidence, or a trustworthy eyewitness

account, or evidence. An affidavit from a convicted felon,

reporting what a mentally ill person, who was always “taking pills”

and “rocking”, told him, nearly a decade ago, is simply unreliable.

It is not scientific evidence, or a trustworthy eyewitness account,

or physical evidence. Rutherford presents no reliable evidence of

actual innocence. Morever, as this Court previously observed,

discussing the prior affidavit, Adkison’s impeachment testimony

“would not have contradicted or provided an innocent explanation

for any of the other evidence presented at trial indicating that

Rutherford was the perpetrator.” Nor would Adkison’s testimony

have “affected Ward's uncontradicted testimony placing Rutherford

in possession of the victim's check.” Rutherford’s actual innocence

claim totally ignores his fingerprints in the bathroom; his

rebutted explanation of those fingerprints; and the four

prosecution witnesses’ testimony that he confessed to them either

before or after the crime. The trial court properly summarily

denied the claim.

-75-

The trial court’s ruling

The trial court ruled:

Defendant claims his conviction and sentence of

death violate the Eighth and Fourteenth Amendments to the

United States Constitution. Defendant argues that taken

cumulatively Gilkerson and Adkison’s affidavits present

this Court with compelling evidence of Defendant’s actual

innocence.

Given the rationale as laid out in Claims III and

IV, this Court finds the affidavits do not give rise to

506 U.S. 390, 423-424, 113 S.Ct. 853, 872, 122 L.Ed.2d

203 (1993) (upholding the denial of actual innocence

claims based on such last minute affidavits in capital

(affirming the denial of a newly discovered evidence

claim that another person confessed to committing the

murder because this inadmissible hearsay evidence

contradicted the overwhelming evidence of the defendant’s

(Fla. 2000) (affirming the denial of a newly discovered

evidence claim consisting of hearsay statements that a

person other than the defendant committed the murder,

because the evidence was admissible solely for

impeachment purposes, did not place this person at the

scene of the crime, and did not affect the testimony of

eyewitnesses who identified the defendant as the

perpetrator).

Based on the overwhelming evidence of guilt

presented at trial, the self-incriminating statements

made by Defendant, the contradictions in the Gilkerson,

Glantz, and Adkison affidavits, and the evidence in the

record that Heaton suffered from a mental disorder, the

Court has determined that the claims raised can be

summarily denied.

(Order at 13-14).

Standard of review

that because the determination as to whether no reasonable juror

-76-

would find a petitioner guilty beyond a reasonable doubt is a mixed

question of law and fact, we review the district court's ultimate

court must make factual findings with respect to new evidence, but

concluding that district court is no better placed than appellate

court to make probabilistic determination as to what reasonable

Merits

Even if a constitutionally mandated actual innocence claim

existed, which is somehow different from Florida’s newly discovered

evidence standard, Rutherford has not established his innocence.

To demonstrate actual innocence in a collateral proceeding, a

petitioner must present “new reliable evidence that was not

presented at trial” and “show that it is more likely than not that

no reasonable juror would have found [him] guilty beyond a

“experience has taught us that a substantial claim that

constitutional error has caused the conviction of an innocent

person is extremely rare” and “[t]o be credible, such a claim

-77-

requires petitioner to support his allegations of constitutional

error with new reliable evidence - whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

U.S. at 324, 115 S.Ct. at 865. The Court also noted that “in

virtually every case, the allegation of actual innocence has been

Adkison’s affidavit is not reliable evidence of actual

innocence. It is not scientific evidence, a trustworthy eyewitness

account, or critical physical evidence. Rather, it is a hearsay

statement regarding a person that the affidavit itself notes has

mental problems. The affidavit states: “Mary was always taking

pills, rocking, and talking.” Mary Heaton’s mental problems were

established at trial when she admitted to the jury that she had

been Baker Acted and that she had problems telling fact from

fiction. An affidavit, from a convicted felon, reporting what a

mentally ill person, who was always “taking pills” and “rocking”,

said to him, is simply unreliable. And Adkison’s affidavit is

contradicted by Glantz’s affidavit. In one affidavit, Heaton is

the actual murderer, but in the other affidavit, Heaton is an

eyewitness to Rutherford committing the murder. Adkison’s

affidavit is not reliable evidence of actual innocence.

Furthermore, courts do not allow prisoners to start with clean

slates after their convictions and argue “actual innocence” as if

bathroom of the victim’s home because he was fixing the bathtub

sliding doors that the victim’s nieces and nephews had “bumped the

sliding part of it off the track.”. (T Vol. IV 607). However, the

State presented the testimony of Beverly Elkins, the victim’s next

door neighbor and close friend, who saw the victim nearly every

day, on rebuttal, who testified that the victim had no nieces or

nephews. (T. Vol. IV 683).

-78-

to do. Worse, he is attempting to do it for the second time.

Basically, Rutherford ignores all the evidence established at the

trial. He ignores his fingerprints in the bathroom; his rebutted

witnesses’ testimony that he confessed to them either before or

after the crime. Instead, he focuses solely on the affidavits.

Rutherford must account for the evidence that remains after

Heaton’s trial testimony is excluded. Even totally excluding both

Heaton and Ward’s testimony, neither of which has recanted their

testimony, Rutherford does not account for the four prosecution

witnesses that testified Rutherford either confessed or told them

prior to the murder that he intended to kill the victim. Nor does

he account for the physical evidence of his fingerprints and palm

prints. Rutherford is not innocent. The trial court properly

denied the claim of actual innocence.

-79-

CONCLUSION

The State respectfully requests that this Honorable Court

affirm the trial court’s summary denial of the second successive

postconviction motion.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

____________________________

CHARMAINE M. MILLSAPS

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

ANSWER BRIEF has been furnished by electronic mail Linda McDermott,

Esq. at lindammcdermott@msn.com with a follow up hard copy by U.S.

________________________________

Charmaine M. Millsaps

Attorney for the State of Florida

CERTIFICATE OF FONT AND TYPE SIZE

Counsel certifies that this brief was typed using Courier New

12.