King v. State

211 So.3d 866

Michael L. KING, Appellant,

v.STATE of Florida, Appellee.

No. SC14–1949

Supreme Court of Florida.

[January 26, 2017]

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel—Middle Region, and Maria Christine Perinetti, Raheela Ahmed, and Donna Ellen Venable, Assistant Capital Collateral Regional Counsel—Middle Region, Tampa, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Scott Andrew Browne, Senior Assistant Attorney General, and Carol Marie Dittmar, Senior Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

This case is before the Court on appeal from an order denying Appellant Michael L. King's motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons expressed below, we affirm the circuit court's denial of relief on all claims. We also conclude that King is not entitled to relief pursuant to the decision of the United States Supreme Court in Hurst v. Florida (Hurst v. Florida ), ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

FACTS

Trial and Direct Appeal

King was sentenced to death for the 2008 murder of Denise Amber Lee. King v. State , 89 So.3d 209, 212 (Fla. 2012). This Court detailed the facts of the murder and subsequent trial in King's initial appeal:

[O]n January 17, 2008, at approximately 3:30 p.m., Nathan Lee returned to his home on Latour Avenue in North Port, Florida, to find his wife, Denise Amber Lee, missing. The doors were locked, but her keys, purse, and cellular telephone were in the house. The couple's two sons, ages six and two months, were in a crib together, which was not typical. At around 4 p.m. that day, Detective Chris Morales of the North Port Police Department was notified that Denise Lee was missing. When Morales responded to the home on Latour Avenue, he found no signs of forced entry or a struggle, and the children were unharmed.

Earlier that day, between 1 and 2 p.m., a neighbor of the Lees was watching television from a position which provided a view of the street. During that time, she saw a green Camaro "creeping up and down my road going very slow." The Camaro had a black "car bra," which is a leather or vinyl casing across the front of the car which protects against impact from insects or rocks. The neighbor observed the car circle the street four or five times. When the neighbor walked outside to investigate because the driver appeared to be lost, the car pulled into the Lees' driveway. The neighbor made eye contact with the driver but, believing that the operator of the vehicle had found the residence he was looking for, she returned to her house. Ten or fifteen minutes later, the neighbor again stepped outside and saw the Camaro depart from the Lees' residence. The neighbor did not observe Denise Lee entering or being forced into the Camaro.

Later that day, between the hours of 5:30 and 6 p.m., Michael King unexpectedly arrived at the home of his cousin, Harold Muxlow. King was wearing a white shirt with a design. King asked Muxlow for a flashlight, a gas can, and a shovel, explaining that his lawnmower was stuck in his front yard. After Muxlow provided King the tools, King immediately left. As Muxlow was walking back to his house, he heard a female voice from the vehicle exclaim, "Call the cops." Muxlow turned around and walked down the driveway toward King, asking what he was doing. King lifted his head from beside the passenger side of the car and replied, "Nothing, don't worry about it." Muxlow initially turned and began to walk toward his house but, curious, he turned around once again and walked to the edge of the street toward the car. There, he saw King crawling over the console in the Camaro and pushing the head of a person with shoulder-length hair down in the back seat. He also observed part of the person's knee rise up. King then climbed into the driver's seat and drove away.

Thinking the incident was suspicious, Muxlow drove to King's residence to investigate if King had returned and whether a lawnmower was in fact stuck in the yard. When Muxlow arrived, he found neither King's green Camaro nor a lawnmower in King's yard. Muxlow placed an anonymous 911 phone call in which he provided a description of King's vehicle and informed the dispatcher that a person might be in the described vehicle against her will.

At 6:14 p.m., the Sarasota County Sherriff's Office received another 911 call. During trial, the parties stipulated that the female voice on this 911 call was that of Denise Lee. Harold Muxlow testified that a second, male voice also present on the 911 recording was that of his cousin, Michael King. The recording of the 911 call presented during trial was transcribed by the court reporter as follows: [n.1]

[n.1] ... Due to the absence of the [complete] transcript, the text of the call is derived from the transcription of the court reporter and an audio recording of the 911 call that was included as part of the record on appeal. Brackets indicate words that the Court could hear but were not fully understood or transcribed by the court reporter.

DISPATCHER: 911.

[LEE: I'm sorry. I'm sorry. I just want to go—]

DISPATCHER: Hello?

[LEE: I'm sorry. I just want to see my family.]

MALE VOICE: Why did you do that?

LEE: I'm sorry. [I just want to see my family.]

DISPATCHER: Hello?

LEE: I just want to see my family again. Please.

DISPATCHER: Hello? Hello?

LEE: I just want to see my family again. Let me go.

DISPATCHER: Hello?

MALE VOICE: (Inaudible) the f**king phone.

LEE: Please let me go. Please let me go. Please let me see my family again.

MALE VOICE: No f**king problem.

LEE: Okay.

DISPATCHER: Hello?

(Inaudible).

LEE: I'm sorry.

[MALE VOICE: I was gonna let you go and then you go f**k around.]

LEE: [I'm sorry. Please] let me go.

MALE VOICE: Where's my phone?

DISPATCHER: Hello?

[MALE VOICE: Now I've got to go to the next street because of him.]

LEE: I'm sorry. Please let me go.

MALE VOICE: What are you doing?

(Inaudible).

LEE: Please let me go, please. Oh, God, please.

[MALE VOICE: (inaudible) in front of my cousin Harold.]

DISPATCHER: Hello?

LEE: Please let me go, [God] please.

MALE VOICE: I told you I would.

DISPATCHER: Hello?

LEE: Help me.

DISPATCHER: What's the address?

LEE: Please help me.

DISPATCHER: What's the address that you're at? [ (to supervisor): Coming off the North Port Tower.]

LEE: Please.

MALE VOICE: I'm not (inaudible).

DISPATCHER: Hello?

LEE: Please let me go.

DISPATCHER: What is the address that you're at? Hello, ma'am?

LEE: Where are we going?

MALE VOICE: I've got to go up and around now because of what you did.

LEE: Up and around where?

MALE VOICE: Didn't you see (inaudible). Exactly four streets—well, five streets over from your house.

LEE: I couldn't tell (inaudible).

DISPATCHER: What's your name, ma'am? Hello? What's your name?

LEE: Please. My name is Denise. I'm married to a beautiful husband, and I just want to see my kids again.

DISPATCHER: Your name's Denise?

LEE: I'm sorry.

DISPATCHER (to supervisor): I'm thinking too, that he doesn't know.

LEE: Please, God. Please protect me.

DISPATCHER: Are you on I–75?

LEE: Where are we?

[MALE VOICE: What did you do with my cell phone?]

LEE: I don't know. Please. Protect me, please.

DISPATCHER: Where are you at? Can you tell if you're on I–75?

LEE: I don't know where your phone is. I'm sorry.

[MALE VOICE: You be honest with me.]

LEE: Can't you just tell me where we are?

DISPATCHER: Are you blindfolded? If you are, press the button.

LEE: I don't have your phone. Please, God.

(Inaudible).

LEE: I don't have it. I'm sorry.

DISPATCHER: Denise? Do you know this guy?

[MALE VOICE: Be honest.]

LEE: I don't—I don't have it. I'm sorry.

DISPATCHER: Denise, do you know this guy? (to supervisor: She might have the phone laid down and not hear a thing I'm saying too. He keeps saying a phone.)

LEE: I don't know where it is. Maybe if I could see I could help you find it.

(Inaudible).

[LEE: No, sir.]

DISPATCHER: Denise?

LEE: I'm looking for it. Uh-huh?

DISPATCHER: How long have you been gone from your house?

LEE: I don't know.

DISPATCHER: How long?

LEE: I don't know.

DISPATCHER: Do you know how long you've been gone from your house?

(Inaudible).

DISPATCHER: What's your last name?

LEE: Lee.

DISPATCHER: Lee?

LEE: Yeah.

DISPATCHER: Do you know—

LEE: I don't know where your phone is.

DISPATCHER: Your name is Denise Lee?

LEE: Uh-huh.

DISPATCHER: Can you tell at all what street you're on?

LEE: No.

DISPATCHER: Do you know this guy that's with you?

LEE: No.

DISPATCHER: You don't know him from anywhere?

LEE: No. Please. Oh, God, help me.

DISPATCHER: What's your address? What's your home address; do you know?

(Inaudible).

LEE: I don't know. Please just take me to my house. Can you take me home, on Latour, please?

DISPATCHER: Can you see or do you have a blindfold on?

LEE: I can't see. Where are we?

(Inaudible).

DISPATCHER: Can they turn off the radio or turn it down?

LEE: I can't hear you. It's too loud. Where are we?

(Inaudible).

LEE: Are you going to hurt me?

MALE VOICE: Give me the phone.

LEE: Are you going to let me out now?

MALE VOICE: As soon as I get the phone.

LEE: Help me.

At that moment, the call was terminated. The cellular telephone number from which the 911 call was dialed was identified as belonging to Michael King. Law enforcement proceeded to King's residence in North Port and forcibly entered the premises; however, neither Lee nor King was there.

During the early evening of January 17, while Shawn Johnson was stopped at a traffic light, he heard an adult female voice screaming for help. At the North Port police station, Johnson subsequently selected Michael King from a photo lineup as the man who was operating the green Camaro from which the screams for help were emanating. Johnson also identified King as the driver during trial.

On that same day, at approximately 6:30 p.m., Jane Kowalski was stopped at a traffic light on Highway 41 when she heard someone screaming

...