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.
OVERTON, Thomas M. (W/M)
DC# 911193
DOB: 11/05/55
Sixteenth Judicial Circuit, Monroe County Case# 96-30167-CF
Sentencing Judge: The Honorable Mark H. Jones
Trial Attorney: Jason Smith – Private
Attorney, Direct Appeal: Maria E. Lauredo – Assistant Public Defender
Attorneys, Collateral Appeals: Terri Backhus, Christina Spudeas & Linda Mroz – CCRC-S
Date of Offense: 08/22/91
Date of Sentence: 03/18/99
Circumstances of the Offense:
On 08/22/91, the bodies of Susan and Michael MacIvor were found in their home in Tavernier Key by concerned neighbors and coworkers. Ms. MacIvor was eight months pregnant.
When law enforcement searched their house, they found Mr. MacIvor’s body in the living room. The room appeared as if a struggle had taken place. Mr. MacIvor was dressed in a T-shirt and his underwear. His head was covered with masking tape so that only part of his nose was exposed. There was a blood spot on the shoulder of the T-shirt. The body displayed slight bleeding from the nostrils, and there was evidence of bruising on the neck.
Ms. MacIvor’s body was found in the master bedroom. Her body was on the bed on top of the comforter. She was completely naked. Her ankles were bound with a belt, masking tape and a piece of clothesline rope. Her wrists were bound with a belt, and there was a belt linking her ankles to her wrists. A garrote made of a necktie and a black sash had been tied around her neck. A dresser drawer was open in the bedroom that led to the officers to conclude that the articles that were used to secure Ms. MacIvor belonged to the victims. Ms. MacIvor’s eyes were covered with masking tape. Several items were found under the comforter: items that appeared to have come from Ms. MacIvor’s purse as well as her nightshirt and panties. Ms. MacIvor’s nightshirt had been ripped off with great force and her panties had been cut by a sharp instrument at each side. A luma light revealed semen stains on Ms. MacIvor’s pubic area, buttocks, and the inside of her thighs. The luma light also exposed semen stains on the sheets. The sheets and the mattress pad were placed into evidence. A .22-caliber shell casing was found in the bedroom along with a bullet hole in the bedroom curtain. In addition, an address book with pages torn out was also found. The sliding glass doors in the bedroom were open and a box fan was running. There had been a heavy rain storm the night before, which, combined with the heat, had left a layer of moisture on Ms. MacIvor’s body.
In the guest room, the sliding glass doors were also open. A ladder had been propped up against the house near the guest bedroom balcony. The clothesline from the balcony had been cut. A piece of clothesline rope had been found outside of the master bedroom door. Outside the house, the phone wires had been cut with a sharp instrument.
The medical examiner testified to findings from the autopsy. Mr. MacIvor suffered a severe blow to the back of the head. There was bruising around the larynx. The larynx, hyoid bone, and epiglottis had been fractured. There was bruising and an internal contusion which reflected a heavy blow to the back of the head. There were ligature marks on his neck indicating the device was wrapped around his neck several times. Internally, the neck was unstable and dislocated at the fifth cervical vertebrate. There was internal bleeding in his left shoulder, signifying a severe blow. He also had bruising in the abdominal area that could have been caused by a strong kick to the stomach. The cause of death was reported as asphyxiation by ligature strangulation. The medical examiner estimated that Mr. MacIvor was conscious for 10 to 15 seconds after the ligature was placed around his neck, although he limited his opinion by stating that it would have depended upon the amount of pressure that was used.
Ms. MacIvor’s body had several abrasions on her face, genitals and legs in addition to ligature marks around her neck and wrists. The medical examiner stated that it appeared that she had moved against the ligature causing friction. Her face was discolored due to the partial application of the ligature. This caused the blood to enter the head at the normal rate, but it was unable to exit as quickly, in addition to increasing the time that it took to render Ms. MacIvor unconscious. Ms. MacIvor was eight months pregnant. The medical examiner testified that the male child would have been viable if Ms. MacIvor had given birth. The child lived approximately 30 minutes after Ms. MacIvor passed away. Evidence indicated that the child tried to breathe while still in the womb.
During the initial stage of the investigation, tests were run on the stains found on the mattress pads and the sheets, which tested positive for sperm. The swabs of Ms. MacIvor’s body did not reveal any spermatozoa. The medical examiner attributed this contradiction to the moist climate in which Ms. MacIvor’s body was found. This climate provided the environment for the seminal fluid to decompose leaving no sperm.
It was at this time that law enforcement initially considered Thomas Overton as a possible suspect. He was suspected in another murder, which he was never arrested for. He was a known cat burglar, plus he worked at the Amoco gas station that was located only minutes away from the MacIvor’s residence.
In June 1993, the bedding samples were sent to Florida Department of Law Enforcement (FDLE) for DNA testing. No match was found at that time. In 1996, Overton was arrested during the course of a burglary. While he was in custody, FDLE asked Overton for a blood sample. Overton refused. After his refusal and while still in custody, Overton attempted to commit suicide by cutting his throat. A blood sample was taken from the towels that had been used during the incident. Preliminary testing of the sample gave law enforcement enough evidence to obtain a court order forcing Overton to relinquish a sample of his blood. In November 1996, Overton’s DNA was compared to the DNA found on the bedding sample from the MacIvor murders. The comparison produced a match with the probability in excess of one in six billion. In 1998, the samples were submitted to another lab for a different DNA test. Again, the comparison produced a match with the probability of one in four trillion.
This DNA evidence was presented at Overtons’ trial in addition to the testimony of two witnesses. The first witness was William Guy Green. Green testified that Overton admitted to him that he had committed a burglary in a wealthy neighborhood in the Florida Keys. Overton related the events that occurred to Green stating that he entered the house and fought with the woman, who had jumped on his back. He also stated that he had fought with another individual in the house. Overton told Green that he to “waste somebody in the Keys.” Overton discussed the safety measures that he would utilize when he committed burglaries, such as cutting the phone wires to the house, wearing gloves, and bringing along equipment such as a gun, knife, gloves and disguises. Overton also told Green that the best time to burglarize a house is during a power outage or a storm.
The second witness was James Zientek. Overton had met Zientek in the Monroe County jail in May of 1997. Overton related all of the details of the two murders to Zientek so that Zientek could relate to law enforcement that he had heard the story from another inmate thereby creating reasonable doubt for Overton. The following events are what Overton told Zientek:
Overton had met Ms. MacIvor at the Amoco station by the victim’s house where he had worked. He described Ms. MacIvor as being “hot and cold” due to the fact that on some days she was nice and other days she was “bitchy.” Overton had gotten Ms. MacIvor’s address from one of her checks. He had observed the house prior to the night of the murder on several occasions. On the night of 08/21/91, Overton went to the MacIvor’s home. He was dressed in all black with a mask and gloves. He cut the phone wires and then leaned a ladder against the balcony. This movement made some noise and subsequently a light came on in the house. Overton waited 20 minutes before entering the house. He climbed up the ladder, and when he reached the balcony, he cut the clothesline, “popped” the sliding glass doors in the guest bedroom and entered the house. He walked through the house and viewed the MacIvors sleeping.
Overton continued to walk around the house and, at one point, he heard a noise and he looked to see Mr. MacIvor walking to the kitchen and then opening the refrigerator. According to Overton, Mr. MacIvor must have sensed that something was wrong because he began to look around and Overton panicked. Overton came at Mr. MacIvor from behind and hit him in the head with a pipe from the house. Mr. MacIvor was not rendered unconscious immediately, so Overton hit him with his fists to knock him out. At this point, Ms. MacIvor ran out of the bedroom, and Overton then chased her back into the bedroom. Overton tied her up with items that he found in the bedroom and tried to talk to Ms. MacIvor telling her that if everyone cooperated no one would get hurt. Ms. MacIvor told Overton that she knew who he was. Overton became concerned about Mr. MacIvor coming to. He went back to the living room and placed a sock over Mr. MacIvor’s eyes and put masking tape around his entire head. Overton’s rationale for this behavior was that he did not want Mr. MacIvor’s eyes to pop out of his head, and he knew that his nose would bleed. Overton went back to the bedroom and raped Ms. MacIvor and then strangled her because he didn’t “want to leave any witnesses.” Overton stated that, at some point, he saw movement in Ms. MacIvor’s stomach and placed his hand on her belly to feel the fetus move. Overton returned to the living room and saw that Mr. MacIvor was “just becoming conscious.” Overton proceeded to kick Mr. MacIvor in the stomach and then strangle him.
Overton also told Zientek that he did not know about the bullet hole and that he tore pages out of the address book to make the scene appear as if the assailant wanted to remove their name from the book. Overton admitted that his intent when he entered the house was to rape Ms. MacIvor.
At the trial, the defense rested solely on the notion that the stains on the bedding had been planted by law enforcement officials; specifically, that a detective had collected some of Overton’s sperm from Overton’s girlfriend and then brought the sample to the crime scene in a condom. Nonoxymol-9 had been found in the samples, but it could not be ascertained whether the substance, used both as a spermicide and as a cleaning agent, originally came from a condom or the detergent used to wash the sheets.
Additional Information:
In October 1996, Overton was convicted of Armed Burglary, Possession of Burglary tools, and Carrying a Concealed Firearm. He was sentenced to life for Armed Burglary and 10 years for each of the other two charges.
Trial Summary:
12/09/91 Indicted as follows:
Count I: First-Degree Murder
Count II: First-Degree Murder
Count III: Killing an Unborn Child
Count IV: Burglary of a Dwelling
Count V: Sexual Battery Involving Serious Physical Force
12/18/96 Defendant entered a written plea of not guilty.
11/20/96 Public Defender’s office filed a motion to withdraw due to conflict of interests.
12/02/96 Motion for Public Defender’s Withdraw as Counsel was granted.
04/25/97 Motion to Withdraw as Attorney.
05/01/97 Order granting the Motion to Withdraw as Attorney. Charles L. Everett withdrew as counsel due to irreconcilable differences, and Jason Smith was appointed as counsel.
02/10/99 Jury returned guilty verdicts on all counts of the indictment.
02/04/99 Jury recommended death by a vote of 8-4 (Michael MacIvor).
Jury recommended death by a vote of 9-3 (Susan Michelle MacIvor).
03/18/99 Sentenced as follows:
Count I: First-Degree Murder – Death
Count II: First-Degree Murder – Death
Count III: Killing an Unborn Child – 15 years
Count IV: Burglary of a Dwelling – Life
Count V: Sexual Battery Involving Serious Physical Force – Life
Appeal Summary:
Florida Supreme Court – Direct Appeal
FSC# 95,404
801 So. 2d 877
04/22/99 Appeal filed
09/13/01 FSC affirmed the conviction and sentence
12/03/01 Rehearing denied
12/03/01 Mandate issued
United States Supreme Court – Petition for Writ of Certiorari
USSC# 01-8915
535 U.S. 1062
03/13/02 Petition filed
05/13/02 Petition denied
State Circuit Court – 3.851 Motion
CC# 96-30167-CF
04/30/03 Motion filed
10/31/03 Amended motion filed
02/14/05 Motion denied
State Circuit Court – 3.853 Motion (DNA)
CC# 96-30167-CF
04/03/03 Motion filed
08/19/04 Motion denied
Florida Supreme Court – 3.853 Appeal (DNA)
FSC# 04-2071
976 So.2d 536
10/27/04 Appeal filed
11/29/07 Appeal denied.
12/14/07 Motion for Rehearing filed.
02/25/08 Rehearing denied.
03/12/08 Mandate issued.
Florida Supreme Court – 3.850 Appeal
FSC# 05-964
976 So.2d 536
06/01/05 Appeal filed
07/21/05 Order to consolidate 3.853 Appeal (DNA)
11/29/07 Appeal denied.
12/14/07 Motion for Rehearing filed.
02/25/08 Rehearing denied.
03/12/08 Mandate issued.
Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 06-237
976 So.2d 536
02/08/06 Petition filed
11/29/07 Petition denied.
12/14/07 Motion for Rehearing filed.
02/25/08 Rehearing denied.
03/12/08 Mandate issued.
Factors Contributing to the Delay in the Imposition of the Sentence:
The eight years from the indictment to the trial delayed the case’s progression.
Case Information:
Overton filed a direct appeal to the Florida Supreme Court on 04/22/99. The main issues raised in the appeal were that the trial court erred in denying the defense challenges for cause of two prospective jurors. In reference to this issue, reversible error is constituted if there was error in the denial of challenges for both jurors. The Court ruled that one of the jurors should have been excused for cause but that the trial could did not abuse its discretion by not granting the challenge for cause in the case of the second juror; therefore, reversible error was not established. In regard to the sentencing phase of the trial, Overton asserted that the trial court erred in not considering certain available mitigation, even though Overton refused to present any mitigation at the sentencing hearing. The Court stated that the trial court did not commit any error in its consideration and evaluation of the available mitigating evidence. The Court affirmed the conviction and sentence on 09/13/01. The rehearing was denied and the mandate was issued on 12/03/01.
Overton filed a petition for a Writ of Certiorari to the United States Supreme Court on 03/13/02. The petition was denied on 05/13/02.
On 04/30/03, Overton filed a 3.851 Motion to the Circuit Court. The motion was amended on 10/31/03. The motion was denied on 02/14/05.
Overton filed a 3.853 Motion (DNA) to the Circuit Court on 04/03/03, which was denied on 08/19/04.
On 10/27/04, Overton filed a 3.853 Appeal (DNA) to the Florida Supreme Court. On 06/01/05, Overton filed a 3.850 Appeal to the Florida Supreme Court. Overton filed a motion to consolidate the appeals (3.853 Appeal (DNA) and 3.850 Appeal) on 06/02/05, which was granted on 07/21/05. The Florida Supreme Court denied Overton’s 3.853 Appeal on 11/26/07. On 12/14/07, Overton filed a motion for rehearing, which was denied on 02/25/08. On 03/12/08, the Florida Supreme Court issued a Mandate in this case.
On 06/01/05, Overton filed a 3.850 Appeal to the Florida Supreme Court. On 07/21/05, the Court issued an order to consolidate with the 3.853 (DNA) Appeal. The Florida Supreme Court affirmed the trial court’s denial of the 3.850 Motion on 11/26/07. On 12/14/07, Overton filed a motion for rehearing, which was denied on 02/25/08. On 03/12/08, the Florida Supreme Court issued a Mandate in this case.
On 02/08/06, Overton filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court, which was denied on 11/26/07. On 12/14/07, Overton filed a motion for rehearing, which was denied on 02/25/08. On 03/12/08, the Florida Supreme Court issued a Mandate in this case.
Institutional Adjustment:
|
DATE |
DAYS |
VIOLATION |
LOCATION |
|
12/01/02 |
90 |
SPOKEN THREATS |
UNION C. I. |
________________________________________________________________________
Report Date: 06/05/02 NMP
Approved: 06/10/02 WS
Updated: 05/06/09 AEH