Paul Glen Everett v. State of Florida

Supreme Court of Florida
____________

No. SC2023-0721
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PAUL GLEN EVERETT,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

January 11, 2024

PER CURIAM.

Paul Glen Everett, a prisoner under sentence of death, appeals

the circuit court’s order summarily denying his motion for

postconviction DNA testing, which was filed under Florida Rule of

Criminal Procedure 3.853. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const.

I. BACKGROUND

In 2001, thirty-one-year-old Kelli M. Bailey was found

murdered in her home, having suffered numerous injuries,

including: a missing tooth; a fractured nose; swelling and
hemorrhaging in her eyes; lacerations to her lips, including one that

extended all the way to her cheek; teeth protruding through the top

of her lip; bruising on her tongue; cuts, scrapes, and abrasions on

her arms, legs, and back; a fracture of her C-5 vertebra; and

hemorrhaging in her spinal cord. The cause of death was a broken

vertebra in her neck, which paralyzed her and caused her to

suffocate to death.

During the investigation, law enforcement discovered that just

days before the murder, Everett had purchased at a local Walmart

the same model of fish bat as one found near the murder scene.

Everett’s DNA was eventually matched to vaginal swabs taken from

the victim on all thirteen genetic markers. After being presented

with an arrest warrant for Bailey’s murder on November 27, 2001,

Everett admitted that he went out on November 2, 2001, looking for

some money and entered the home of Bailey, a stranger to him,

uninvited, through an unlocked door. Although he denied knowing

that he killed Bailey, he admitted beating her, forcibly raping her,

and jerking and twisting her neck during the attack.

Everett was indicted on charges of first-degree murder,

burglary of a dwelling with a battery, and sexual battery involving

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serious physical force. He was found guilty as charged and

sentenced in 2003 to death for the murder and life imprisonment

for the burglary and sexual battery.

We affirmed Everett’s convictions and sentences on direct

appeal. Everett v. State, 893 So. 2d 1278 (Fla. 2004). In the years

that followed, we also affirmed the denials of his initial and

successive motions for postconviction relief. Everett v. State, 54 So.

3d 464 (Fla. 2010); Everett v. State, 258 So. 3d 1199 (Fla. 2018).

Everett also sought and was denied federal habeas relief. Everett v.

Crews, 5:11cv81/RS, 2014 WL 11350293 (N.D. Fla. Mar. 28, 2014),

aff’d, 779 F.3d 1212 (11th Cir. 2015).

In 2022, Everett filed a motion for postconviction DNA testing

under rule 3.853 and section 925.11, Florida Statutes. In his

motion, Everett sought testing of fifteen items that he claimed

would link to the murder scene Jared Farmer, with whom he had

been staying in a motel near Bailey’s home at the time of the

murder. Most of the items of which Everett sought testing were

found at or near the crime scene, but Everett also requested testing

of a saliva sample taken from Farmer, Farmer’s inked fingerprints,

and the shoes Farmer was wearing at the time of his arrest on

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November 15, 2001, for lying to law enforcement during a prior

sworn interview. Everett asserted that he is innocent and that “[i]f

DNA testing shows a match between Farmer and the items . . . ,

this evidence could result in an acquittal or the jury finding Mr.

Everett guilty of a lesser offense.”

The circuit court denied the motion, concluding that there was

no reasonable probability that the testing Everett sought would

produce an acquittal or lesser sentence in light of the overwhelming

evidence against him and the minimal value of proving that

Farmer’s DNA was on the proposed items. This appeal followed.

II. ANALYSIS

Section 925.11(1)(a)1., Florida Statutes (2022), provides that a

person convicted and sentenced for a felony may seek

postconviction DNA testing of evidence collected during the

investigation of the crime that would exonerate that person or

mitigate the sentence that person received. Florida Rule of Criminal

Procedure 3.853 provides the procedures for obtaining such testing.

Rule 3.853(b) requires that the motion be under oath and include,

inter alia, “a statement that the movant is innocent and how the

DNA testing requested by the motion will exonerate the movant of

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the crime for which the movant was sentenced, or a statement how

the DNA testing will mitigate the sentence received by the movant

for that crime” and “a statement that identification of the movant is

a genuinely disputed issue in the case and why it is an issue or an

explanation of how the DNA evidence would either exonerate the

defendant or mitigate the sentence that the movant received.” Fla.

R. Crim. P. 3.853(b)(3)-(4). We review the summary denial of the

motion de novo, Gosciminski v. State, 262 So. 3d 47, 55 (Fla. 2018),

and find no error for the following reasons.

First, Everett’s motion was insufficiently pleaded. Everett

alleged that if the testing sought revealed Farmer’s DNA on the

items, such evidence could result in an acquittal or a finding of guilt

of a lesser offense. But section 925.11 and rule 3.853 require a

movant to plead that “the DNA testing requested” “will exonerate

the” movant “or will mitigate the sentence.” § 925.11(2)(a)3., Fla.

Stat. (emphasis added); Fla. R. Crim. P. 3.853(b)(3) (emphasis

added).

Next, this Court has repeatedly concluded that where a

defendant has confessed and the record supplies no substantial

basis to doubt the identity of the perpetrator, he cannot show a

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reasonable probability of acquittal. See Hitchcock v. State, 991 So.

2d 337, 348 (Fla. 2008) (“We agree with the circuit court’s finding

that Hitchcock has not demonstrated how DNA testing would result

in newly discovered evidence likely to produce an acquittal on

retrial. DNA analysis of the pubic hairs found on the victim would

not exonerate Hitchcock because he admitted having sexual

intercourse with her.”); Sireci v. State, 908 So. 2d 321, 325 (Fla.

2005) (finding no reasonable probability that the defendant would

have been acquitted or received a lesser sentence and no error in

the denial of postconviction DNA testing where seven witnesses

testified that the defendant admitted to them that he killed the

victim); Robinson v. State, 865 So. 2d 1259, 1265 (Fla. 2004)

(stating that identity was not at issue where defendant “stipulated

that he shot the victim twice in the head, but claimed that the first

shot was accidental and took place after the two engaged in

consensual sex”).

Everett’s admissions to law enforcement on November 27,

2001, that he burglarized Bailey’s home, beat her, forcibly raped

her, and jerked and twisted her neck during the attack were

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admitted at trial. Everett told law enforcement that no one else was

present at the time of the murder.

Regarding the November 27, 2001, statement, Everett’s

counsel stated in closing,

Number one, it is basically truthful, and you know that it
is basically truthful because what is represented in the
statement is corroborated by evidence at the scene. We
know that to be true. It’s also truthful in that you get to
hear the voice of Paul Everett, you get to hear the timbre
of his voice, you get to hear the emotion that is there,
and we all know that when people are making a clean
breast of something that they often become emotional.
They don’t get emotional when they’re lying about
something, they get emotional when they are fessing up
to something. And so there is a patina of truthfulness
about the statement. At the same time, even though the
statement may be truthful, it is not totally accurate.[1]

Everett’s counsel also told the jury,

This is not premeditated murder. This is not a conscious
decision to kill and reflection upon that decision and a
carrying out of that decision. It is sexual battery. I mean
there’s no way that, you know, I can suggest to you
otherwise. And what is, anytime a sexual act is
committed without the other person’s consent, that is
sexual battery. But what is important here is that the
judge will tell you that sexual battery using serious force,
the force has to occur during the process of that. And
even though what happened was despicable and

1. The inaccuracies in Everett’s statement to which counsel
referred involved the time of the murder and whether Bailey’s lights
and TV were on when he entered her home.

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outrageous, at the time it was done there was no force
being applied at that point.[2] So that at least on that
count, that the main charge has not been proven, just
like premeditated murder hasn’t been proven.

Everett’s defense at trial was not that he was innocent or

a bystander or that Farmer or anyone else was the killer or a

coparticipant. He did not claim that his admissions to law

enforcement were false; his attorney, in fact, argued to

convince the jury that the admissions were true. Everett’s

defense was that he killed Bailey during a “bungled burglary”

while “high on drugs” and that the murder was not

premeditated. 3 Not only was identity not genuinely disputed

at Everett’s trial, it was conceded.

2. The “lack of force” argument was apparently based on the
fact that Bailey’s neck was already broken at the time of the rape,
and she was unable to move below the injury and therefore unable
to offer any resistance that Everett would have had to use force to
overcome.

3. Lack of premeditation, however, was not a defense to the
first-degree murder charge because Everett was charged with both
premeditated and felony murder, the jury was instructed on both
theories, the jury returned a general guilty verdict on the first-
degree murder charge, and this Court found the evidence sufficient
to support the first-degree murder conviction under both theories,
Everett, 893 So. 2d at 1287.

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Everett complains that the circuit court provided no rationale

for rejecting the claims in his motion that his confession was false

and ignoring “significant evidence” of Farmer’s involvement in the

murder. But these complaints are misplaced. Both section 925.11

and rule 3.853 require that before a defendant is entitled to

postconviction DNA testing, he must demonstrate “a reasonable

probability that” he “would have been acquitted or would have

received a lesser sentence if the DNA evidence had been admitted at

trial.” § 925.11(2)(f)3., Fla. Stat. (emphasis added); Fla. R. Crim. P.

3.853(c)(5)(C) (emphasis added). The clear focus of both the statute

and the rule is whether the evidence expected to be revealed by the

testing sought would have created a reasonable probability of a

different outcome if it had been introduced at the defendant’s prior

trial in addition to the evidence as it was presented in that prior

trial. Everett’s attempts to pad the record with “evidence” that was

not admitted at his trial are improper.

There was no evidence presented at Everett’s trial that he

falsely confessed or that anyone else was responsible for the murder

or present at the scene. Thus, anything relating to those claims—

e.g., that Everett’s admissions were false, that Farmer was present

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at the scene of the murder, that Farmer had threatened Everett into

giving a false confession, that Farmer knew details of the murder

that only someone present would know—are irrelevant for the

purpose of determining whether the DNA testing sought would yield

a reasonable probability of an acquittal had it been introduced at

his trial. The sole question before this Court today is whether there

is a reasonable probability that an objectively reasonable factfinder

at Everett’s trial would have acquitted him or given a lesser

sentence if evidence that Farmer’s DNA was on the items of which

Everett sought testing had been introduced along with the rest of

the evidence as it was presented at his trial. And this question

must be answered without consideration of any alleged “evidence”

that was not introduced at the trial.

We also agree with the circuit court that there is no reasonable

probability that the postconviction DNA testing sought would

mitigate Everett’s sentence. “[A] movant . . . must lay out with

specificity how the DNA testing of each item requested to be tested

would give rise to a reasonable probability of acquittal or a lesser

sentence.” Hitchcock v. State, 866 So. 2d 23, 27 (Fla. 2004). This,

Everett failed to do. Even assuming that the DNA testing sought

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could somehow have established that Farmer was present during

and participated in the murder, there is still no reasonable

probability that Everett would have received a lesser sentence.

Farmer’s involvement in the murder would not have mitigated

Everett’s involvement, especially in light of Everett’s admissions—

which were consistent with the other evidence presented at trial—

that he beat and raped Bailey and jerked and twisted her neck

during the attack, which was shown to have caused her death.

Everett also asserted that if Farmer’s DNA had been found at

the scene, the State would have also charged Farmer with Bailey’s

murder, which would have resulted in Everett’s jury receiving the

independent act jury instruction and entitled Everett to additional

constitutional scrutiny of his involvement before he could be

sentenced to death. But these claims are based on speculation of

the course of action the State may have taken had Farmer’s DNA

been found at the murder scene, and speculative claims cannot

form the basis of granting a motion for postconviction DNA testing.

Id. at 26.

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III. CONCLUSION

Because Everett’s motion for postconviction DNA testing did

not establish a reasonable probability that Everett would have been

acquitted or received a lesser sentence if the presence of DNA at the

scene of the murder matching Jared Farmer had been admitted at

his trial, we affirm the circuit court’s summary denial.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Bay County,
Brantley S. Clark, Jr., Judge
Case No. 032001CF002956XXAXMX

Robert Friedman, Capital Collateral Regional Counsel, and Alice B.
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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