Johnny Mack Sketo Calhoun v. State of Florida ( 2023 )

Supreme Court of Florida
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No. SC2022-1286
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JOHNNY MACK SKETO CALHOUN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
July 6, 2023
PER CURIAM.
Johnny Mack Sketo Calhoun appeals the circuit court’s
denials of his successive motion for postconviction relief filed under
Florida Rule of Criminal Procedure 3.851 and of his request for
additional public records filed under Florida Rule of Criminal
Procedure 3.852(i). 1 For the reasons below, we affirm both denials.
BACKGROUND
In 2012, Calhoun was convicted of the 2010 first-degree
murder and kidnapping of Mia Chay Brown, whom Calhoun
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
kidnapped in Florida and burned to death in the trunk of her car in
Alabama. Calhoun v. State, 138 So. 3d 350, 354-58 (Fla. 2013)
(Calhoun I), cert. denied, 574 U.S. 895 (2014). Consistent with the
jury’s recommendation by a 9-3 vote, the trial court sentenced
Calhoun to death for the murder and to 100 years of imprisonment
for the kidnapping, and we affirmed the convictions and sentences
on direct appeal. Id. at 359, 368.
In 2015, Calhoun filed his initial postconviction motion under
rule 3.851 in the circuit court seeking relief from his convictions
and sentences. After the evidentiary hearing, Calhoun moved (for
the sixth time) to add a new claim and to reopen the evidentiary
hearing. The circuit court refused and ultimately denied relief as to
all of Calhoun’s guilt-phase claims. But, applying this Court’s
decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in
part by State v. Poole, 297 So. 3d 487 (Fla. 2020), the court vacated
Calhoun’s death sentence and ordered a new penalty phase. We
affirmed on appeal and denied Calhoun’s accompanying petition for
writ of habeas corpus. Calhoun v. State, 312 So. 3d 826, 834 (Fla.
2019) (Calhoun II), cert. denied, 141 S. Ct. 394 (2020).
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While Calhoun II was pending in this Court, Calhoun filed in
the circuit court the successive postconviction motion at issue in
this appeal, in which he raised a newly discovered evidence claim
based on an alleged jailhouse confession. (Calhoun had
unsuccessfully sought to add this claim to his initial postconviction
motion.) Calhoun also moved to stay proceedings on his successive
motion pending our disposition of Calhoun II, which the circuit
court granted.
On remand from Calhoun II, the circuit court held an
evidentiary hearing on Calhoun’s successive claim. The crux of that
claim is Calhoun’s allegation that Doug Mixon, the father of
Calhoun’s former girlfriend, in July or August 2017 confessed to a
fellow inmate that he had killed the victim and framed Calhoun.
After hearing testimony from Calhoun’s witnesses, including Mixon
and Keith Ellis, the inmate to whom Mixon had allegedly confessed,
the circuit court denied relief. 2 The circuit court found “that Doug
2. The circuit court’s order also denies (for the second time)
another newly discovered evidence claim based on an “implied”
confession by Mixon. We already affirmed the denial of relief as to
that claim in Calhoun II, 312 So. 3d at 838-39, and Calhoun does
not appeal this part of the order.
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Mixon did not confess to Inmate Keith Ellis.” It concluded that
there was “overwhelming evidence of Calhoun’s guilt” and that “the
nature of the newly discovered evidence involving Inmate Ellis is
only as a questionable ‘jailhouse confession’ and/or tough talk
allegedly made by Doug Mixon, who has refuted such testimony.”
The circuit court also concluded that Ellis’s testimony about
Mixon’s alleged confession would be inadmissible under the
standard set out in Chambers v. Mississippi, 410 U.S. 284 (1973).
After the circuit court denied his successive postconviction
motion, Calhoun filed a request for additional public records under
rule 3.852(i). As we will explain later in more detail, Calhoun
sought a prison incident report that he claimed would bolster his
theory of Mixon’s jailhouse confession. The circuit court denied
that motion as well.
This appeal followed.
ANALYSIS
Calhoun argues that the circuit court erred in denying his
newly discovered evidence claim based on Mixon’s alleged jailhouse
confession. He also argues that the circuit court abused its
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discretion in denying his request for additional public records. We
disagree and affirm both denials.
Newly Discovered Evidence
Two requirements must be met to set aside a conviction based
on newly discovered evidence:
First, the evidence must not have been known by the trial
court, the party, or counsel at the time of trial, and it
must appear that the defendant or defense counsel could
not have known of it by the use of diligence. Second, the
newly discovered evidence must be of such nature that it
would probably produce an acquittal on retrial. See
Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II).
Newly discovered evidence satisfies the second prong of
the Jones II test if it “weakens the case against [the
defendant] so as to give rise to a reasonable doubt as to
his culpability.” Jones II, 709 So. 2d at 526.
Marek v. State, 14 So. 3d 985, 990 (Fla. 2009) (alteration in
original). In this case, the State does not dispute that Calhoun’s
claim satisfies the first prong.
The second prong—whether newly discovered evidence would
likely produce an acquittal upon retrial—requires the circuit court
to “conduct a cumulative analysis of all the evidence.” Hildwin v.
State, 141 So. 3d 1178, 1184 (Fla. 2014). The circuit court must
evaluate what effect the newly discovered evidence might have in
light of all the admissible evidence that could be introduced at a
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new trial, Dailey v. State, 329 So. 3d 1280, 1288 (Fla. 2021),
assessing the “total picture” of the case and all its circumstances,
Hildwin, 141 So. 3d at 1184 (quoting Swafford v. State, 125 So. 3d
760, 776 (Fla. 2013)).
Here, the newly discovered evidence consists of Doug Mixon’s
alleged jailhouse confession to fellow inmate Keith Ellis. The circuit
court, after a hearing at which Mixon and Ellis testified, found that
the alleged confession did not, in fact, occur. Final Order Denying
Defendant’s Successive Rule 3.851 Motion for Post Conviction Relief
After Limited Evidentiary Hearing at 9, State v. Calhoun, No.
302011CF000011CFAXMX (Fla. 14th Cir. Ct. July 27, 2022) (“The
Court finds that Doug Mixon did not confess to Inmate Keith
Ellis.”). Our review of that finding is limited to determining whether
it is supported by competent, substantial evidence. Green v. State,
975 So. 2d 1090, 1100 (Fla. 2008). If it is, we are precluded from
substituting our judgment for that of the trial court. Cruz v. State,
320 So. 3d 695, 712 (Fla. 2021) (quoting Blanco v. State, 702 So. 2d
1250, 1252 (Fla. 1997)).
Competent, substantial evidence supports the trial court’s
finding. Mixon testified that he did not tell Ellis that he had
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“burned a girl in a car in Alabama,” but that he had told Ellis, “my
future ex-son-in-law of mine killed a young lady and burned her in
a car, and they [are] trying to blame me with it or say I know
something about it[.]” In deciding to credit Mixon’s testimony over
Ellis’s, the circuit court observed each witness’s demeanor at the
evidentiary hearing. See Ibar v. State, 190 So. 3d 1012, 1018 (Fla.
2016) (“Postconviction courts hold a superior vantage point with
respect to . . . observations of the demeanor and credibility of
witnesses.”). In these circumstances, we may not substitute the
circuit court’s finding with a different one of our own. See Calhoun
II, 312 So. 3d at 837 (deferring to the circuit court’s finding that
postconviction testimony was false because that finding was
supported by competent, substantial evidence).
Given the trial court’s finding, Calhoun’s newly discovered
evidence claim necessarily fails. If the new evidence is not
credible—that is, if Mixon did not confess to murdering the victim
in this case—then that evidence would not probably produce an
acquittal on retrial. Therefore, Calhoun cannot satisfy the second
prong of the Jones test. See, e.g., State v. Riechmann, 777 So. 2d
342, 360 (Fla. 2000) (affirming the denial of a newly discovered
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evidence claim where the postconviction court determined that
witness testimony was “less than credible” and thus “would
probably not have created a reasonable doubt in the minds of the
jury”). We affirm the circuit court’s denial of postconviction relief. 3
Public Records
Calhoun also challenges the circuit court’s denial of his
request for additional public records under rule 3.852(i), which he
filed after the circuit court denied his successive postconviction
motion. We review the court’s decision for an abuse of discretion.
See Sweet v. State, 293 So. 3d 448, 454 (Fla. 2020).
Calhoun’s records request grew out of the testimony of the
three witnesses who testified at the evidentiary hearing in this
matter: Doug Mixon; Keith Ellis; and Karon Matheny, a nurse who
worked at the prison where Mixon and Ellis were incarcerated, who
had known the defendant (Calhoun) since his childhood, and who
owned property near the place where the victim’s body was found.
3. Because of our decision on the merits of Calhoun’s newly
discovered evidence claim, we need not address the circuit court’s
conclusion that Ellis’s testimony about Mixon’s alleged confession
would be inadmissible under Chambers.
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Relevant here, Ellis testified that Mixon had threatened to kill
Matheny on account of Matheny allegedly spreading lies about
Mixon’s involvement in the murder; Ellis said that he told Matheny
about Mixon’s threat. Matheny testified that she had not previously
heard of Mixon, but that she reported the threat to her supervisor
after Ellis told her about it. Finally, in his own testimony, Mixon
denied having threatened to harm Matheny. Addressed to the
Graceville Correctional Facility and filed with the circuit court,
Calhoun’s records request covered the period July through October
2017 and sought any documents related to Mixon’s alleged threats
against Matheny.
We see no abuse of discretion in the circuit court’s denial of
Calhoun’s request for additional records. First, Calhoun waited to
file the request until after the court had denied relief on his newly
discovered evidence claim, even though Calhoun knew about the
possible existence of responsive documents before the evidentiary
hearing in this matter. See Tompkins v. State, 872 So. 2d 230, 244
(Fla. 2003) (unjustified delay constitutes grounds for denying
motion to compel records production). Second, and relatedly, the
purpose of rule 3.852 is to facilitate a defendant’s access to records
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for use in a postconviction proceeding. Here, the only apparent
relevance of the requested records (assuming responsive documents
exist) is to provide support for an already denied claim that was the
subject of an evidentiary hearing. The relevant postconviction
proceeding was over before Calhoun filed his records request.
Cf. Hamilton v. State, 236 So. 3d 276, 279 (Fla. 2018) (defendant
must show “records sought relate to a colorable claim for
postconviction relief”).
CONCLUSION
For the reasons above, we affirm the circuit court’s denials of
Calhoun’s successive postconviction motion and of his request for
additional public records.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.
SASSO, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Holmes County,
Christopher N. Patterson, Judge
Case No. 302011CF000011CFAXMX
Robert S. Friedman, Capital Collateral Regional Counsel, Elizabeth
Spiaggi, Assistant Capital Collateral Regional Counsel, and Alice
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Copek, Assistant Capital Collateral Regional Counsel, Northern
Region, Tallahassee, Florida,
for Appellant
Ashley Moody, Attorney General, and Jason W. Rodriguez, Assistant
Attorney General, Tallahassee, Florida,
for Appellee
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