The Commission on Capital Cases updates this information regularly.  This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.

 

JOHNSTON, David (W/M)

DC #  084761

DOB: 03/11/60

 

Ninth Judicial Circuit, Orange County, Case # 83-5401

Sentencing Judge, Trial: The Honorable Rom W. Powell

Attorney, Trial: Christine Warren and Clyde Wolfe – Assistant Public Defenders

Attorney, Direct Appeal: Ronald R. Findell – Private

Attorney, Collateral Appeals: Todd Doss – Registry

 

Date of Offense:         11/05/83

Date of Sentence:       06/01/84

 

Circumstances of Offense:

 

On November 5, 1983, David Johnston placed a call to the Orlando Police Department at 3:30 a.m. identifying himself as Martin White.  Johnston gave the police the address of the crime scene stating that someone had killed his grandmother.  When the police arrived, they found 84-year-old Mary Hammond’s dead body in the house.  The victim had been stabbed multiple times and also displayed signs of manual strangulation.  Johnston was arrested after police noticed scratches on his face, blood on his clothing, and noted various discrepancies in the accounts he gave to several officers at the crime scene.

 

Prior to the murder, Johnston had contact with the victim due to his employment at a demolition site close to the victim’s home.  Johnston was seen in the victim’s apartment, washing dishes five days prior to the murder.  Witnesses saw Johnston earlier without scratches on his face.  Additionally, Johnston’s watch, which was later found covered with blood in the victim’s bathroom, was seen on Johnston’s wrist as late as 1:45 a.m. the morning of the murder.  A butterfly pendant that Johnston was seen wearing as late as 2:00 a.m. was found in the victim’s hair.  A blood-stained butcher knife was discovered under the victim’s mattress and a footprint was found outside the kitchen window that matched Johnston’s shoe.  A pillowcase was found at the demolition site that contained a brass teapot, a wine bottle, flatware, tableware, and a silver candlestick, all of which belonged to the victim.

 

Trial Summary:

 

12/05/83          Defendant was indicted with the following:

Count I:           First-Degree Murder

05/18/84          Defendant found guilty of First-Degree Murder

05/29/84          Jury recommended Death by a vote of 8-4

06/01/84          Defendant was sentenced as follows:

Count I:           First-Degree Murder – Death

 

Additional Information:

 

On 12/17/04, the Florida Supreme Court remanded jurisdiction to the Circuit Court for a mental retardation determination.  On 07/25/05, the Circuit Court denied the motion.

 

Prior Incarceration in Florida:

 

 

Prior Prison History: (Note: Data reflected covers periods of incarceration with the Florida Dept.of Corrections since January of 1983)
Offense Date	Offense	Sentence Date	County	Case No.	Prison Sentence Length
02/08/1982	BATT.LEO/FIRFGT/EMS/ETC.	06/28/1982	ORANGE		2Y 0M 0D

 

 

Appeal Summary:

 

Florida Supreme Court – Direct Appeal

FSC #65,525

497 So. 2d 863

 

07/02/84          Appeal filed.

11/13/86          Conviction and sentence affirmed.

12/17/86          Mandate issued.

 

State Circuit Court – 3.850 Motion

CC #83-5401

 

11/28/88          Motion filed.

08/16/89          Motion denied.

 

Florida Supreme Court – Petition for Writ of Habeas Corpus

FSC #73,362

583 So. 2d 657

 

11/28/88          Petition filed.

06/20/91          Petition denied.

08/23/91          Rehearing denied.

08/23/91          Mandate issued.

 

Florida Supreme Court – 3.850 Appeal

FSC #74,743

583 So. 2d 657

 

09/19/89          Appeal filed.

06/20/91          Circuit Court’s denial of 3.850 affirmed.

08/23/91          Rehearing denied.

08/23/91          Mandate issued.

 

United States District Court (Middle District) – Petition for Writ of Habeas Corpus

USDC #91-797

 

10/23/91          Petition filed.

09/16/93          Granted in part, denied in part; case remanded to FSC, citing an error in

Johnston’s original sentencing.

11/03/93          Rehearing denied.

 

Florida Supreme Court – Direct Appeal (on remand)

FSC #82,457

640 So. 2d 1102

 

09/29/93          Appeal filed, remanded from the USDC.

06/23/94          Affirmed conviction and sentence.

08/16/94          Rehearing denied.

08/16/94          Mandate issued.

 

United States Court of Appeals (11th Circuit) – Habeas Appeal

USCA #93-3407

 

11/15/93          Appeal filed.

12/08/98          USCA affirmed USDA’s denial of Habeas.

05/26/99          Rehearing denied.

 

United States Supreme Court – Petition for Writ of Certiorari

USSC #94-7596

513 U.S. 1195

 

01/06/95          Petition filed.

02/27/95          Petition denied.

 

State Circuit Court – 3.850 Motion

CC #83-5401

 

03/08/95          Motion filed.

03/25/96          Motion denied.

 

Florida Supreme Court – 3.850 Appeal

FSC #88,019

708 So. 2d 590

 

05/13/96          Appeal filed.

03/05/98          FSC affirmed Circuit Court’s denial of 3.850.

 

Florida Supreme Court – Petition for Writ of Habeas Corpus

FSC #89,874

708 So. 2d 590

 

02/11/97          Petition filed.

03/05/98          Petition denied.

 

United States Supreme Court – Petition for Writ of Certiorari

USSC #99-5058

528 U.S. 883

 

06/25/99          Petition filed.

10/04/99          Petition denied.

 

Florida Supreme Court - Petition for Writ of Habeas Corpus

FSC #00-1024

789 So.2d 262

 

05/10/00          Petition filed.

04/12/01          Petition denied.

06/15/01          Rehearing denied.

 

State Circuit Court – 3.851 Motion

CC #83-5401

 

06/25/02          Motion filed.

01/31/03          Motion denied.

 

Florida Supreme Court – 3.851 Appeal

FSC #03-824

960 So.2d 757

 

05/02/03          Appeal filed.  

05/04/06          FSC affirmed denial of motion.

 

State Circuit Court – 3.853 Motion

CC #83-5401

 

05/06/09          Motion filed.

05/11/09          Motion denied.

 

State Circuit Court – 3.851 Motion

CC #83-5401

 

05/06/09          Motion filed.

05/11/09          Motion denied.

 

Florida Supreme Court – 3.850 Appeal

FSC #09-839

 

05/13/09          Appeal filed.

05/21/09          Appeal granted; FSC issued order for DNA testing.

 

Florida Supreme Court – 3.850 Appeal (combined with 3.853 Appeal (DNA)

FSC #09-839

 

08/19/09          Appeal filed.

01/21/10          Appeal denied.

 

Florida Supreme Court – 3.850 Appeal

FSC #10-356

(Pending)

 

02/26/10          Appeal filed.

 

United States Supreme Court – Petition for Writ of Certiorari

USSC #10-5124

 

04/21/10          Petition for Writ of Certiorari filed.
10/12/10          Petition denied.

 

Death Warrant:

 

10/28/88          Warrant signed by Governor Bob Martinez.

12/12/88          Stay granted by Florida Supreme Court.

04/20/09          Warrant signed by Governor Charlie Crist.

05/21/09          Execution stayed by the Florida Supreme Court.

01/21/10          Stay of Execution lifted by Florida Supreme Court.

02/19/10          Warrant Signed by Governor Charlie Crist.

 

Clemency:

 

12/03/87          Clemency hearing held (denied).

 

Factors Contributing to the Delay in Imposition of Sentence:

 

Johnston’s Habeas Appeal was pending in the United States Court of Appeals for over five years.  Johnston’s 3.851 Motion Appeal was pending from 05/02/03 – 05/04/06.

 

Case Information:

 

A Direct Appeal was filed with the Florida Supreme Court (FSC) on 07/02/84.  Issues that were raised on appeal included whether the trial court erred by not allowing the public defender to withdraw and whether the trial court erred by swearing in each individual juror as selected, thus preventing “backstriking” of jurors.  The FSC found all of the claims either harmless or without merit and affirmed the conviction and sentence on 11/13/86.

 

A 3.850 Motion was filed with the State Circuit Court on 11/28/88 and denied on 08/16/89.

 

A Petition for Writ of Habeas Corpus was filed with the FSC on 11/28/88.  Issues that were raised on appeal included whether the prosecutor and the trial court misinformed the jury concerning its proper role in sentencing and whether the trial court failed to consider nonstatutory mitigating factors.  The FSC found all of the claims either harmless or without merit and denied the Petition on 06/20/91. 

 

A 3.850 Appeal was filed with the FSC on 09/19/89.  Issues that were raised on appeal included whether the trial court erred by finding Johnston competent to stand trial and also included various claims of ineffective counsel.  The FSC found all of the claims either harmless or without merit and affirmed the Circuit Court’s denial of the 3.850 on 06/20/91.

 

A Petition for Writ of Habeas Corpus was filed with the Middle District of the United States District Court (USDC) on 10/23/91.  The USDC remanded the case to the FSC on 09/16/93 for a harmless error analysis.  The FSC reaffirmed the conviction and sentence on 06/23/94.

 

A Habeas Appeal was filed with the 11th District of the United States Court of Appeal (USCA) on 11/15/93 who affirmed the USDC denial of the Petition for Habeas Corpus.

 

A Petition for Writ of Certiorari was filed with the United States Supreme Court (USSC) on 01/09/95 and denied on 02/27/95.

 

A 3.850 Motion was filed with the State Circuit Court on 03/08/95 and denied on 03/25/96.

 

A 3.850 Appeal was filed with the FSC on 05/13/96.  Issues that were raised on appeal included whether the trial court erred in refusing to grant a hearing on the failure of various state agencies to comply with outstanding public records requests.  The FSC found claims either harmless or without merit and affirmed the Circuit Court’s denial of the 3.850 Motion on 03/05/98.

 

A Petition for Writ of Habeas Corpus was filed with the FSC on 02/11/97.  Issues that were raised on appeal included whether the harmless error analysis was improperly and unconstitutionally conducted.  The FSC found all of the claims either harmless or without error and denied the Petition on 03/05/98.

 

A Petition for Writ of Certiorari was filed with the United States Supreme Court (USSC) on 06/25/99 and denied on 10/04/99.

 

A Petition for Writ of Habeas Corpus was filed with the FSC on 05/10/00.  Issues that were raised on appeal included whether the FSC applied an incorrect standard in reviewing Johnston’s ineffective assistance of counsel claim in their 1991 opinion.  The FSC denied the Petition on 04/12/01.

 

A 3.851 Motion was filed with the State Circuit Court on 06/11/02 and denied on 01/31/03.

 

A 3.851 Appeal was filed with the FSC on 05/02/03, raising the following issues: Ring issues and mental retardation determination.  On 05/04/06, the FSC affirmed the denial of the motion.

 

On 04/20/09, Governor Charlie Crist signed a death warrant for Johnston.  The execution is scheduled for May 27, 2009 at 6:00 P.M.

 

On 05/06/09, Johnston filed a 3.853 Motion and a successive 3.851 Motion in the State Circuit Court.  Both motions were denied on 05/11/09.

 

On 05/13/09, Johnston filed a 3.850 Motion Appeal in the Florida Supreme Court.  This appeal was granted on 05/21/09 and the Florida Supreme Court issued an order for DNA tests to be conducted on the defendant’s clothing and the victim’s fingernail clippings.

 

On 08/19/09, Johnston filed a 3.850 Appeal to the Florida Supreme Court, which was combined with Johnston’s 3.853 Appeal (DNA).  The Florida Supreme Court denied this appeal on 01/21/10.

 

On 02/26/10, Johnston filed a 3.850 Appeal to the Florida Supreme Court. This appeal is pending.

 

On 04/21/10, Johnston filed a Petition for a Writ of Certiorari to the United States Supreme Court.   This petition was denied on 10/12/10.

 

____________________________________________________________________

 

 

Report Date:    01/29/04         cc

Approved:       02/23/04          ew

Updated:         11/01/10          CAR