IN THE SUPREME COURT OF FLORIDA

JASON ANDREW SIMPSON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

Case No. SC12-605

STATE'S RESPONSE OPPOSING PETITION

Pursuant to this Honorable Court's Order dated August 1, 2012,

requesting that the State respond to the "Petition for Review of

Nonfinal Order in Capital Case (Regarding Inspection and Testing

of Evidence)," filed April 2, 2012, the State submits the

following in opposition to the Petition.

BACKGROUND.

The Petition (Pet 1-2, 4-25)1 discusses Simpson's view of the

facts at length. The State addresses Simpson's facts when his

1 The "Petition for Review of Nonfinal Order in Capital Case

(Regarding Inspection and Testing of Evidence)," which is the

subject of this proceeding is referenced in this Response as

"Petition" and cited as "Pet" followed by applicable page numbers.

The Petition's five volume appendix will be referenced as

"PApp" followed by any applicable page numbers. RApp references

Respondent's Appendix, accompanying this Response.

The record on direct appeal will be cited using the Roman

Number of the volume followed by applicable page numbers.

Bold and bold-underlining indicate supplied emphasis, unless

otherwise noted.

2

Petition argues them as purported support for his claim for

extraordinary relief. At this juncture, the State presents its

version of the basic facts and other basic background for this

Court's review of the Petition.

Pending Florida Supreme Court Cases.

The following cases are currently pending before this Court

concerning underlying Duval Circuit Case 2002-CF-11026 in which

Simpson was convicted for the murders of Archie Crook, Sr., and

Kimberli Kimbler and sentenced to death:

SC12-605 (this case), in which Simpson is petitioning for, in

essence, writ-relief from trial court rulings concerning

evidentiary matters; Simpson indicates that the petition

concerns the same trial court order as SC12-633;

SC12-633, in which Simpson indicates he is appealing pursuant

to Fla.R.Crim.P. 3.853; on August 16, 2012, this Court has

issued an order establishing a briefing schedule; and,

SC12-763, in which Simpson is petitioning to order that the

presiding Circuit Court judge be disqualified; pursuant to

this Court's request, the State has responded, and Petitioner

has replied.

Thus, in SC12-633, Simpson is also seeking DNA-related review

in which he cites to Rule 3.853, Fla.R.Crim.P.

Timeline.

At this juncture, the State provides an outline of the

procedural history of the case through a timeline, followed by a

summary of the facts, as reflected in this Court's direct appeal

opinion.

3

DATE EVENT

2003-2006 Defense's DNA Lab possessed multiple items of

evidence to afford it the opportunity to conduct

DNA testing. (See PApp 150; II 298; VI 1146-48,

1152-54; VII 1161-71, 1209-1210, 1220-22, 1226-

27; see also, e.g., II 276-84; III 574-75; VII

1175-84, 1195, 1235-37)

2007 The Honorable Charles W. Arnold, Jr., presided

over jury trial in which the jury found Simpson

guilty as charged of the First Degree Murder of

Archie Crook, Sr., and Kimberli Kimbler. (V 791-

92; XIX 1725-27)

2007 Jury recommended the death penalty by votes of 8-

4 and 9-3. (V 820-21, XXII 1976)

2007 Death sentence imposed on Simpson for each count.

(V 908-33, X 1791-1807)

2/12/2009 On direct appeal, Simpson v. State, 3 So.3d 1135

(Fla. 2009)(FSC Case No. SC07-798), affirmed the

convictions and death sentences.

4/15/2009 This Court issued the mandate for the direct

appeal. (See this Court's on-line docket for

SC07-798)

10/5/2009 United States Supreme Court denied Simpson's

Petition for Writ of Certiorari at Simpson v.

Florida, 130 S.Ct. 91, 78 USLW 3172 (2009)(USSC

Case No. 08-10414).

10/1/2010 Simpson filed his "Defendant's Rule 3.851 Motion

for Collateral Relief After Death Sentence." (See

Duval County's on-line docket, excerpted in RApp

A infra)

12/1/2010 State filed written response opposing Simpson's

postconviction motion. (See Duval County's on-

line docket, excerpted in RApp A infra)

11/8/2011 Simpson's Motion to Require Preservation and

Allow Inspection and Testing of Physical and

Biological Evidence. (PApp 1 et seq.)

11/15/2011 Hearing at which DNA and evidence-review

discussed. (PApp 124 et seq.)

11/21/2011 Simpson filed his 156-page "Amended Initial Rule

3.851 Motion for Collateral Review and Memorandum

4

DATE EVENT

of Law." (Copied, with different pagination at

PApp 195 et seq.)

12/7/2011 Jacksonville Sheriff's Office's response to

Defendant's Motion to Compel. (Attached as RApp C

infra)

12/8/2011 State's Response to Defendant's Motion for Post-

Conviction DNA Testing Pursuant to Rule 3.853.

(PApp 426-32)

12/21/2011 State's Supplemental Response to Defendant's

Motion for Post-Conviction DNA Testing Pursuant

to Rule 3.853. (PApp 534-35)

12/30/2011 Simpson's Reply to State's Response to Motion to

Require Preservation and Allow Inspection and

Testing of Physical and Biological Evidence.

(PApp 433 et seq.)

1/25/2012 State's 131-page Amended Response Opposing

Defendant's Amended Postconviction Motion.

(Attached as RApp D infra)

2/21/2012 Defendant's Supplemental Memorandum in Support of

Motion regarding Physical Evidence, with Word's

deposition attached. (PApp 536-649)

3/1/2012 Trial court's Order On Defendant’s Motion To

Require Preservation And Allow Inspection And

Testing Of Physical And Biological Evidence,

dated 2/27/2012, which is the subject of

Simpson's Petition. (Attached as RApp B infra;

PApp 650-61)

4/2/2012 Simpson's Petition for Review of Nonfinal Order

in Capital Case (Regarding Inspection and Testing

of Evidence), in SC12-605, to which the State

responds here.

4/2/2012 Simpson's Notice of Appeal filed regarding

Fla.R.Crim.P. 3.853, in SC12-633. (See Duval

County's on-line docket, excerpted in RApp A

infra)

4/19/2012 Petition for Review of Non-Final Order in Death

Penalty Postconviction Proceeding or,

Alternatively, Petition for Writ of Prohibition,

in SC12-763.

5

Trial Facts.

Simpson v. State, 3 So.3d 1135, 1138-39 (Fla. 2009)(bold

typeface in original), provided an overview of the facts adduced

at trial:

The Guilt Phase

In the late evening hours of July 15, 1999, or the early

morning hours of July 16, 1999, Simpson went to the home of

Archie Crook, Sr., and Kimberly Kimbler in Jacksonville,

Florida, armed with an ax. Simpson entered the home, went

into the master bedroom where Crook and Kimbler were

sleeping, and proceeded to use the ax to hack Crook and

Kimbler to death. Simpson inflicted several blows on Crook's

face and neck, breaking his jawbone and severing his carotid

artery. Simpson struck Kimbler, who was between seven and

seven and a half months pregnant, in the back of her arm,

shattering the bone. Simpson then inflicted numerous blows on

Kimbler's head and neck, ultimately breaking her neck bone.

Defensive wounds found on both victims showed that they

attempted to fend off Simpson.

Detectives located an ax containing Crook and Kimbler's DNA

in the backyard of the Crook and Kimbler home. They also

located a sweatshirt, a pair of sweatpants, shoes, and a hat

in a pile behind an air-conditioning unit on the property of

a church located directly behind the home. Kimbler's DNA was

found on the sweatshirt, sweatpants, and shoes. Crook's DNA

was found on the sweatpants. Simpson's DNA was found on the

sweatshirt and sweatpants, and two of Simpson's hairs were

collected from the debris sweep of the sweatshirt,

sweatpants, and hat. Fibers matching the sweatshirt and

sweatpants were found on a barbed-wire fence located right

behind the back door of the Crook and Kimbler home.

Additionally, Simpson confessed to an acquaintance that he

murdered Crook and Kimbler.

On January 29, 2007, the jury found Simpson guilty of the

first-degree murders of Crook and Kimbler.

The Penalty Phase

The penalty phase commenced on February 6, 2007, at which

time both the State and Simpson presented evidence. The State

presented evidence that Simpson was previously arrested for

armed robbery, which he admitted committing, and that during

the robbery Simpson told the victim, 'I'll blow your brains

6

out' and not to look at him again or he would 'blow his

Mother-F[']ing head off.' Simpson pleaded guilty in that case

to the lesser-included offense of grand theft in exchange for

cooperation with law enforcement in other cases.

Simpson presented evidence from a psychiatrist who testified

that violence was a constant feature in Simpson's home during

his developmental period, that he had a genetic

predisposition to alcohol and substance abuse, and that he

started using alcohol and drugs at age ten. Simpson's alcohol

and drug abuse continued until his arrest in this case, at

which point he was using $1,000 a week worth of cocaine, plus

other drugs and alcohol. The psychiatrist opined that both

the inheritance pattern and observation of violence as a

youth resulted in a twenty percent increase in the

possibility of Simpson having a behavior problem or dissocial

personality or becoming a criminal. Simpson attempted suicide

numerous times, beginning when he was young, and several

times during his hospitalization for drug abuse, depression,

and psychiatric disorders, and during his incarceration.

Simpson's sister testified that she was terribly afraid of

Simpson as a child because his moods would change, he often

ran away from home, and he was threatening. His sister acted

as a surrogate mother because his parents were largely absent

from his life. Other witnesses presented by Simpson testified

that he cooperated with law enforcement in other cases

despite death threats to himself and his mother, that he was

a good worker who was respectful, and that he was

knowledgeable of the Bible and very religious.

In reviewing the sufficiency of the evidence, this CCourt

summarized:

The State presented evidence that Simpson confessed to

Durrance. This constituted direct evidence of Simpson's

guilt. See Murray v. State, 838 So.2d 1073, 1087 (Fla. 2002).

Moreover, there was evidence that Simpson's DNA was on the

sweatshirt and sweatpants that were linked to the murders in

that they contained the victims' blood, were found on the

church property directly behind Crook's house, and matched

material found on the barbed wire fence right outside the

back door to the house. Simpson's hairs were found among the

sweatshirt, sweatpants, and hat. Finally, other

circumstantial evidence suggested Simpson's guilt, such as:

Simpson's initial denial of knowing the victims and his

immediate departure from the police interview after being

asked whether he knew Archie Crook, Sr.; his denial that the

7

clothing, hat, and shoes were his; his freshly injured hand

and conflicting story about how he got the injury; and the

telephone number of his mother's home, where he stayed, as

the last number on the victims' pager.

Simpson, 3 So.3d at 1147-48.

ARGUMENT OPPOSING PETITION

ISSUE: HAS SIMPSON'S PETITION MADE A SUFFICIENT SHOWING THAT

JUSTIFY THIS COURT INTERVENING IN ONGOING POSTCONVICTION TRIAL

COURT PROCEEDINGS BY MANDATING THAT THE PRESIDING JUDGE PROVIDE

THE DEFENDANT ADDITIONAL POSTCONVICTION DISCOVERY?

A. UNTIMELINESS OF PETITION.

Fla.R.App.P. 9.142(c)(3) requires that petitions seeking review

of nonfinal orders be filed "within 30 days of rendition of the

nonfinal order to be reviewed." Here, the trial court's order on

which the Petition seeks review was dated February 27, 2012 and

filed in the Circuit Court on March 1, 2012. (See trial court

docket, attached at RApp A; cover pages of PApp) This Petition was

not filed until April 2, 2012, (See on-line docket for SC12-605)

making it untimely. Accordingly, the Petition failed to invoke the

jurisdiction of this Court. Because of its untimeliness, the

Petition should be rejected and this Court's stay, lifted.

B. STANDARD OF REVIEW.

If this Court reviews the Petition on the merits, applying the

compound standards of review applicable to petitions and to trial

court evidentiary rulings, it has no merit.

Trepal v. State, 754 So.2d 702, 707 (Fla. 2000), explained the

burden for this petition as "establish[ing] that the order ...

8

does not conform to the essential requirements of law and may

cause irreparable injury for which appellate review will be

inadequate." Accordingly, Florida Dept. of Corrections v. Watts,

800 So.2d 225, 226-227 (Fla. 2001), explained:

In Trepal, we adopted a two-prong test for determining

whether to grant relief of interlocutory orders in death

cases: (1) whether the trial court's order conformed to the

essential requirements of law; and (2) whether the order

would cause an injury that could not adequately be corrected

on appeal from the final order. 754 So.2d at 707.

See also Amendment to the Florida Rules of Appellate Procedure

(Rule 9.142), 837 So.2d 911 (Fla. 2002); cf. Nader v. Florida

Dept. of Highway Safety and Motor Vehicles, 87 So.3d 712, 723

(Fla. 2012)("exercise caution not to expand certiorari

jurisdiction to review the correctness of the circuit court's

decision"). Nader cautioned that failing to exercise caution for

this type of petition, which attempts to intervene into the

orderly process of a trial court, would improperly "afford a

litigant two appeals."

Nader, 87 So.3d at 723, also explained that the departure-from-

essential-requirements-of-law test "cannot be used to create new

law where the decision below recognizes the correct general law

and applies the correct law to a new set of facts to which it has

not been previously applied."

"A departure from the essential requirements of law is not mere

legal error, but instead, involves a 'gross miscarriage of

justice.'" Sutton v. State, 975 So.2d 1073, 1081 (Fla.

9

2008)(quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527

(Fla. 1995)).

Compounding the Petition's burden is its attack on a

postconviction-discovery-type of order here. On such appellate

claims, the non-prevailing party below bears the burden of

demonstrating to the reviewing court that the trial court's ruling

was an abuse of discretion. See Blanco v. State, 963 So.2d 173,

177 (Fla. 2007)("A trial court's ruling denying postconviction

discovery is subject to review for abuse of discretion"); Floyd v.

State, 18 So.3d 432, 446-448 (Fla. 2009)("Floyd next challenges

the postconviction court's denial of his requests to subpoena the

counseling records of the three children and to depose J.J. The

ruling of a postconviction court on a motion for discovery is

reviewed for an abuse of discretion"; citing Reaves v. State, 942

So.2d 874, 881 (Fla. 2006)).

"Discretion is abused only when the judicial action is

arbitrary, fanciful, or unreasonable, which is another way of

saying that discretion is abused only where no reasonable person

would take the view adopted by the trial court." Parker v. State,

904 So.2d 370, 379 (Fla. 2005).

In sum, the Petition bears the burden of demonstrating that the

trial court's order was unreasonable to the degree that it

constituted a "gross miscarriage of justice." It fails to meet

this test. Indeed, the Petition fails to demonstrate any

10

reversible error -- even under the much more rigorous standard,

not applicable here, of de novo review.

C. THE TRIAL COURT'S ORDER.

The Petition seeks review of the trial court's 11-page Order,

which, rather than block-quoting here, this response attaches it

as an appendix (RApp B). The State submits that the order facially

exudes reasonableness and facially demonstrates that "no gross

miscarriage of justice" and no "irreparable injury" apply.

Facially, the order rebuts all of the Petition's burdens. The

Petition bore all these burdens; it demonstrated none.

The State next discusses aspects of the Order's reasonableness,

the non-gross miscarriage of justice, and non-irreparable injury.

D. THE FAILURE OF THE PETITION TO DEMONSTRATE THAT THE TRIAL

COURT WAS UNREASONABLE TO THE DEGREE THAT IT COMMITTED AN

IRREPARABLE MISCARRIAGE OF JUSTICE.

DNA Testing.

As especially significant background, the defense, for its own

testing, possessed much of the State's evidence for over two years

prior to the trial in this case. The defense's DNA Lab possessed

the evidence to afford it the opportunity to conduct DNA testing.

(See PApp 150; II 298; VI 1146-48, 1152-54; VII 1161-71, 1209-

1210, 1220-22, 1226-27; see also, e.g., II 276-84; III 574-75; VII

1175-84, 1195, 1235-37) The Petition fails to demonstrate

precisely what and how any additional admissible testing that

would be consequential under Fla.R.Crim.P. 3.853's test of a

11

"definitive result establishing that the movant is not the person

who committed the crime" and "reasonable probability that the

movant would have been acquitted ...." See also Tompkins v. State,

872 So.2d 230, 243 (Fla. 2003)(affirmed denial of a motion for DNA

testing; given other evidence, "no reasonable probability that

Tompkins would have been acquitted or received a life sentence").

Indeed, Simpson's postconviction expert did not even address

any specific tests that Cellmark Laboratories conducted for the

defense prior to the jury trial. (See PApp 550-630)

When this Court's stay is lifted, the State will be entitled to

review trial defense counsel's file pursuant to the alleged IAC

postconviction claim to determine the results of the defense DNA

examinations and any reasons why defense counsel decided not to

use those results. (See also reference to e-mail in which the pre-

trial expert indicated to trial defense counsel that she did not

see the point of additional testing "since the work that I

reviewed all seemed to be performed correctly," at PApp 619, which

she qualified on a non-scientific basis, See PApp 620) In this

sense, at this juncture, Simpson also cannot meet the test of

"irreparable" injury.

Further, the postconviction defense expert failed to provide

evidence that any new testing techniques would be admissible under

Frye. (See PApp 550-630)

12

And, even assuming that the new techniques are admissible, the

defense postconviction expert testified that new DNA techniques

would not "negate the results already identifying Mr. Simpson."

(PApp 623)

Moreover, the defense's postconviction expert did not dispute

FDLE's DNA analyses of the sweatshirt and two hairs recovered from

the clothing that was linked to the murder scene. (See PApp 614;

see also PApp 629) See Olvera v. State, 870 So.2d 927, 930 (Fla.

5th DCA 2004)("no matter what the outcome of any test of the hair

samples, the fact remains that DNA testing has shown that his

semen was found in the victim's vagina"). Concerning the

sweatshirt, for example, as the trial court's order correctly

reasoned and documented:

During the trial, the State presented the testimony of

Charles Badger, a senior crime laboratory analyst at FDLE.

(T.T. at 1109-1212.) Mr. Badger conducted STR DNA testing on

the sweatpants, sweatshirt, hat, sneakers, and axe.

Swabbings of the waistband of the sweatpants contained a

mixture, and the major contributor matched the DNA profile of

Defendant. (T.T. at 1185-87.) Shawn Smallwood, Archie Crook,

Jr., and George Durrance were all excluded as being a

secondary donor within the DNA mixture. (T.T. at 1188, 1200.)

Swabbings from the leg cuffs of the sweatpants also contained

a mixture, with the major contributor matching Defendant’s

DNA profile. (T.T. at 1188-90.) A profile of the minor

contributor was not able to be determined. (T.T. at 1191.)

Cuttings from the neckline of the sweatshirt contained a

mixture, and the primary contributor’s profile matched the

DNA profile of Defendant. (T.T. at 1191-2.) Shawn Smallwood

and George Durrance were both excluded as the minor

contributor, but Archie Crook, Jr., could not be excluded.

(T.T. at 1193-4, 1200.) However, one in four people share

the DNA profile developed in the minor profile. (T.T. at

1194.) Additionally, a white crusty substance from the

13

sweatshirt was tested and matched the DNA profile of

Defendant. (T.T. at 1195-6.) All other alternative suspects

were excluded as possible donors of the substance. (T.T. at

1198, 1200.)

... Two hairs recovered from the clothing were tested, and

matched the DNA profile of Defendant. (T.T. at 1197-8.)

Archie Crook, Jr., Shawn Smallwood, and George Durrance were

all excluded as possible donors of the DNA. (T.T. at 1198.)

(RApp B at p. 5, footnotes omitted) This reasoning renders the

order reasonable.

Thus, as the trial court correctly found:

The DNA evidence presented at trial was not inconclusive and

no further testing would produce a definitive result

establishing that Defendant is not the person who committed

the crime. The prior testing established the presence of DNA

belonging to someone other than Defendant. However, most

significantly, the evidence established that Defendant was

the primary contributor of DNA to the sweatshirt and

sweatpants. All other possible suspects were excluded as

possible minor contributors to the waistband of the

sweatpants and the white substance on the sweatshirt. The two

hairs match each other and Defendant.

(RApp B pp. 5-6)

In sum, Simpson's request for additional DNA testing was yet-

another "fishing expedition" that he hoped would result in

admissible and probative evidence. But his hopes do not measure up

to requisite specificity. See also Hitchcock v. State, 866 So. 2d

23, 27-28 (Fla. 2004)("Rule 3.853 is not intended to be a fishing

expedition."; "provide a defendant with an opportunity for DNA

testing of material not previously tested or of previously tested

material when the results of previous DNA testing were

inconclusive and subsequent developments in DNA testing techniques

would likely provide a definitive result"); Kelley v. State, 974

14

So.2d 1047, 1050-51 (Fla. 2007)("fishing expedition" impermissible

under rule 3.853; "evidence collected in the Sweet trials was

destroyed").

Examining the Crime Scene Evidence.

The Petition's assertion that "the trial court refus[ed] to

allow Simpson's attorneys and experts to even view the evidence"

(Pet 26) may give an incorrect impression that the defense has

been denied access. While its February 27, 2012, order denied

Simpson's request to require, in postconviction proceedings, the

transportation for the defense crime scene expert, the State has

provided more than reasonable opportunities for defense access.

As significant background, as discussed supra, the defense's

laboratory actually possessed much of the evidence prior to trial

for over two years.

Further, during the postconviction proceedings, on November 15,

2011, the prosecutor offered to make the evidence available as

long as it is in an "appropriate setting." (PApp 172-73) On

December 7, 2011, the Jacksonville Sheriff's Office (JSO), in its

response to Defendant's Motion to Compel, indicated that it had

tendered its cooperation with the postconviction defense:

... following the November 15, 2011 hearing undersigned

counsel and Detective Meachum asked defense counsel to

identify those additional items of physical evidence she

desires to view so that Detective Meachum could advise on its

status. As of the date of filing this response, defense

counsel still has not identified the items at issue. An email

was sent to defense counsel on December 6, 2011, again asking

15

for specifics, with no reply to date. The JSO is willing [to]

allow defense counsel to inspect all items of physical

evidence in a supervised manner to as to preserve the

integrity of the evidence; however, defense counsel needs to

specify the additional items she seeks to inspect.

(Attached as RApp C, p. 2, infra)

Especially given this past history, the trial court's ruling

was more than imminently reasonable:

Defendant seeks transport of the remaining State Exhibits and

evidence for review by a crime scene and blood spatter

expert. (Def.’s Motion at 17.) ... There is no general right

to discovery in a post-conviction proceeding. Johnston v.

State, 27 So. 3d 11, 24 (Fla. 2010). Discovery within this

setting is a matter within the trial court’s discretion. Id.

... With regard to the crime scene analysis and fingerprint

analysis, Defendant has not shown that additional testing

would produce a reasonable probability of acquittal.

Defendant's requests constitute a fishing expedition.

Therefore, Defendant’s requests are denied.

(RApp B pp. 9-10)

Where the defense failed to follow-up with opportunities for

access and where, as the trial court found, the defense failed to

demonstrate with any requisite specificity and probability the

result, the trial court's denial of the defense's request for

review-access was not a gross miscarriage, and the State did not

cause even speculative harm. Indeed, the postconviction defense

caused any supposed harm.2

2 Further, even accepting arguendo the defense's allegations on

their face, the postconviction defense team, at the outset, should

have coordinated their visit with the prosecutor, as well as with

the police, and not assumed that examining evidence in a

16

Thus, the trial court's genuine explorations of the issues at

the December 15, 2011, hearing (PApp 473-532); see also PApp 129-

92), and the trial court's order that the evidence be preserved

(RApp B p. 10) further show the trial court's reasonableness that

belie any contention that it was producing a "gross miscarriage of

justice" or any actionable "irreparable harm."

E. SIMPSON'S SELF-SERVING VIEW OF THE EVIDENCE AND LAW.

Although the State respectfully submits that the foregoing

discussions, as well as the sound reasoning within the trial

court's order (RApp B) justify denying the Petition and

immediately lifting the stay, the State also notes that it

disputes Simpson's views of the facts and law.

First and foremost, Simpson has failed to demonstrate, and the

State emphatically denies, any "bad faith" (Pet 26-27) by the

State. Instead, Simpson failed to present to the trial court

specific reasons how and why his request for additional access

meets requisite legal tests.

Simpson repeatedly alleges (Pet 5, 32, 37-38) that Durrance has

recanted. However, Simpson bears the burden of producing

admissible evidence that proves that Durrance has recanted. He has

yet to meet that burden. Indeed, it is axiomatic that recantations

"warehouse" (See PApp 9-10) would sufficiently protect the

evidence's integrity.

17

are inherently unreliable. Pertaining to Durrance, Simpson also

argues (Pet 38-39, 42) a factual matter concerning the point of

entry, which trial defense counsel already stressed at trial (See,

e.g., XV 902-908; XIX 1654, 1671) and that the prosecutor conceded

(XIX 1685).

Simpson (Pet 29-32) discusses the test for IAC at some length

and contends that the trial court used the wrong test. Simpson is

erroneously crossing-up and jumbling tests, not the trial court.

Moreover, arguendo, assuming that Simpson can prove any

prejudice under any legal theory, the State contests Simpson's

assumption that he can accumulate Brady prejudice with IAC

prejudice. Indeed, those two legal theories tend are, by their

natures, mutually exclusive.

For the Fla.R.Crim.P. 3.853 portion of Simpson's motion, the

trial court properly referenced (See RApp pp. 6-10) the

"reasonable probability" test in that rule. Indeed, the trial

court did not consider Simpson's allegations in "isolation" to the

point where it block-quoted this court's summary of other aspects

of the case (RApp B p. 6).

Simpson's attempts to accumulate supposed prejudice across

various matters and various legal principles, in addition to

erroneously jumbling them, are also theoretical and not probative.

As the trial court already suggested, this discussion is a

speculative "fishing expedition." In the trial court, Simpson

18

failed to specify how his supposed new DNA technique(s) would be

admissible under Frye and how, if admitted, it would prove, to the

degree of rising to a "reasonable probability" of an acquittal,

Fla.R.Crim.P. 3.852(c), anything different from the bottomline

that his DNA was on the clothing linked to the crime scene. For

example, his snotty-like substance (crusty substance) on the

sweatshirt remains his snot, even according to his own

postconviction DNA expert.

Simpson attempts (Pet 32-42) to re-litigate factual findings

that this Court made in its direct-appeal decision. The State's

Answer Brief (SC07-0798 pp 6-13, 78-80) detailed the matters, and,

this Court found as follows in holding the evidence sufficient for

"Simpson's convictions for the first-degree murders of Crook and

Kimbler":

The State presented evidence that Simpson confessed to

Durrance. This constituted direct evidence of Simpson's

guilt. See Murray v. State, 838 So.2d 1073, 1087 (Fla. 2002).

Moreover, there was evidence that Simpson's DNA was on the

sweatshirt and sweatpants that were linked to the murders in

that they contained the victims' blood, were found on the

church property directly behind Crook's house, and matched

material found on the barbed wire fence right outside the

back door to the house. Simpson's hairs were found among the

sweatshirt, sweatpants, and hat. Finally, other

circumstantial evidence suggested Simpson's guilt, such as:

Simpson's initial denial of knowing the victims and his

immediate departure from the police interview after being

asked whether he knew Archie Crook, Sr.; his denial that the

clothing, hat, and shoes were his; his freshly injured hand

and conflicting story about how he got the injury; and the

telephone number of his mother's home, where he stayed, as

the last number on the victims' pager.

19

Simpson v. State, 3 So.3d 1135, 1147-48 (Fla. 2009). These facts

remain compelling.

Simpson also suggests (Pet 33-34, 36; see also Pet 10) that, at

trial, Simpson testified that Little Archie borrowed the clothes

at issue. This is incorrect. Instead, Simpson testified that

Little Archie asked to borrow some dark clothes to "steal

something." (XVII 1384-86) Simpson said that he and Little Archie

then went to where Simpson was staying. Simpson continued:

Well, I told him I wanted to take a shower and he could pick

something out. So he started going through stuff on the

floor. I pointed to the floor, I said, you can pick something

out there.

Q. Okay. Did you see exactly what he picked out or were you

in the shower?

A. No, I seen him picking out some clothing, some black

clothing.

Q. Okay. At some point you get in the shower?

Q. Yes. And then ... I go take a shower. I said, you can just

get what you want, I'm going to take a shower.

Q. And what does he do while you're in the shower?

A. Well, I come out of the shower and he's not there, my

drawer is open on my dresser and Tom Waugh's card is on the

top of the desk.

(XVII 1387) By his own story, Simpson actually did not know which

specific clothes Little Archie took.

Simpson suggests (Pet 34) that Ms. Word would have "advised" to

have more areas tested. However, the possibility of more tests is

insufficient to be entitled to the additional testing. The

possibility of more tests does not mean that those tests would

20

meet Frye or otherwise be admissible or probative. Further, as

discussed supra, Ms. Word actually did not recommend more tests

but qualified her comments.

Simpson presents (Pet 34-35) his view of Mr. Badger's trial

testimony. Simpson overlooks that his expert, Ms. Word agreed with

FDLE's DNA results on the snotty sweatshirt and hairs on the

clothes, as discussed supra. Moreover, Mr. Badger, at Simpson's

record citations (Compare Pet 34-35 with Pet 8-9), discussed more

than one contributor but not in such a way to undermine the

reliability of the testing. Yet further, at this juncture, the

pre-trial Cellmark results have not been disclosed in the trial

court record, which the State will remedy by viewing defense

counsel's file when the stay is lifted.

At this juncture concerning Brady, Simpson (Pet 35) confuses

his bald accusations with probative proof through admissible

evidence. "Could be" proves nothing pertinent towards meeting any

of Brady's elements. Concerning IAC, Simpson forgets that the

record shows that his trial counsel initiated testing at Cellmark,

which possessed the evidence for over two years.

Simpson mentions (Pet 35-36) the mixture on the neckline of the

sweatshirt, but he overlooks that one on four people share that

DNA profile (See XVI 1194) and overlooks his failure to present

the trial court with proof that admissible new DNA evidence would

21

change any result to any degree, including to a "reasonable

probability" of an acquittal.

Simpson discusses (Pet 36) his crime scene expert, but, as

discussed supra, he overlooks that the State has already tendered

access to the evidence. Further, he fails to argue the foundation

for admissibility for such an opinion that is based upon what the

expert knows has been unavailable. Simply stating that she "needs"

to examine everything to "substantiate" her preliminary analysis

(PApp 9) is conclusory and insufficient.

Simpson argues (Pet 37) that he claims a due process violation

due to the destruction of evidence, but this is inconsistent with

his desire to test evidence he says was destroyed. Indeed, the

State's enduring good faith is illustrated by its desire to

preserve the integrity of the evidence by not simply trusting the

latest defense expert to preserve it, especially when the State

has already afforded the defense access to substantial evidence

for years. Moreover, the trial court has ordered the evidence

preserved, and the trial court's order is the subject of this

appeal.

Simpson contends (Pet 39-40) that more than one person may have

had a motive. Simpson oversimplifies the prosecutor's opening

statement, which actually also contended that Simpson believed

that Big Archie was telling others that Simpson was a snitch (XIII

507), and, trial defense counsel already argued Little Archie's

22

motive and Little Archie's DNA at trial (XIX 1658-66, 1670, 1674),

and even with Simpson's postconviction hindsight he still would

not be able to explain away his own DNA -- and, indeed, there is

the additional other evidence. Further, concerning the crime scene

evidence, Little Archie, the night of the murder, had been

innocently in his father's residence (See, e.g., XIV 781-82). See

Overton v. State, 976 So.2d 536, 568-59 (Fla. 2007)("conclusory

assertion that if the hair does not belong to Overton or the

victims, it must belong to a person who committed or participated

in the crime, is far too tenuous because there is no way to

determine when, why, where, or how the hairs attached to the

tape";"speculation ... a basis for denying a rule 3.853 motion";

citing Lott v. State, 931 So.2d 807, 821 (Fla.2006)("fishing

expedition"; "pure conjecture"); Hitchcock v. State, 866 So.2d 23,

26 (Fla.2004) (speculative claims)).

Simpson continues (Pet 40-42) with closing-argument-type

discussion, attempting to re-litigate evidence argued extensively

at trial and pretending that each circumstance can be isolated

without reference to their totality. However, the chance of the

combination of the pager number, the cut on Simpson's hand,

Simpson failing to recognize his clothes, and supposedly

mishearing police questions, in addition to his DNA, are so remote

it strains the imagination.

23

While the State generally attempts to focus on the parts of the

record on which Simpson relies in his Argument section (Pet 25-

44), the State does note that Simpson's facts section (at Pet 15)

may be suggesting that, based on the trial court's comments at the

November 15, 2011, hearing, the trial court was inclined to deny

his Fla.R.Crim.P. 3.853 motion because in another case DNA

exonerated the defendant. Such a suggestion would be incorrect.

Instead, Judge Arnold's point was that a successor judge falsely

assumed he (Judge Arnold), in providing DNA testing based on new

techniques, had made a determination that the testing would

exonerate the defendant. (See PApp 158-60) Consequently, in

Simpson's case the Judge, prior to providing additional DNA

testing, would adhere to the Rule's requirements regarding a

"reasonable probability," which, in his order, he did.

Simpson incorrectly argues irreparable injury, but he overlooks

all the other evidence amassed against him, including even DNA

evidence that his own expert concedes. He also overlooks his

experts possessing the evidence for over two years prior to trial.

He also overlooks the State tendering the evidence for

postconviction crime-scene expert examination. He also overlooks

that he has failed to prove, with specific admissible evidence,

what exculpatory results he has been denied. See, e.g., Blanco v.

State, 963 So.2d 173, 177 (Fla. 2007)("Blanco has not shown that

his request would result in relevant or material evidence"). He

24

also overlooks the availability of appeal from the trial court's

final postconviction order.

The Order attacked here applied the correct rule of law and

carefully and reasonably examined each of the evidentiary items.

The Petition has failed to meet its burdens.

E. THE STAY OF THE TRIAL COURT PROCEEDINGS.

Based on the forgoing arguments, the State respectfully submits

that this Court's stay of the lower court proceedings should be

lifted as soon as possible.

WHEREFORE, for each and all of the foregoing reasons, as well

as those stated within the trial court's Order, the State

respectfully submits that the Petition should be denied and the

pending stay should be lifted.

25

CERTIFICATE OF SERVICE

I certify that on August 31, 2012, this STATE'S RESPONSE

OPPOSING PETITION was furnished to the following by U.S. Mail:

John S. Mills

203 N. Gadsden St., Ste 1A

Tallahassee, Florida 32301

(Copy of Response and its

Appendices)

Sonya Rudenstine

Attorney at Law

204 W. University Ave., Ste. 5

Gainesville, FL 32601

(Copy of Response only)

CERTIFICATE OF COMPLIANCE

I certify that this Response was computer generated using

Courier New 12 point font.

Respectfully submitted, served, & certified

PAMELA JO BONDI, ATTORNEY GENERAL

______________________________

By: STEPHEN R. WHITE

Florida Bar No. 159089

Att'y for Respondent, State of Fla.

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Fl 32399-1050

(850) 414-3300 (VOICE)

(850) 487-0997 (FAX)

IN THE SUPREME COURT OF FLORIDA

JASON ANDREW SIMPSON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

Case No. SC12-605

APPENDIX

IN SUPPORT OF

STATE'S RESPONSE OPPOSING PETITION

A. Duval County's on-line docket. (excerpts)

B. Trial court's Order On Defendant’s Motion To Require

Preservation And Allow Inspection And Testing Of Physical And

Biological Evidence, which is the subject of this Petition.

C. Jacksonville Sheriff's Office's Response to Defendant's Motion

to Compel.

D. State's Amended Response Opposing Defendant's Amended

Postconviction Motion.

2

A

3

B

4

C

5

D

6