Johnny Mack Sketo Calhoun v. State of Florida

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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