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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 – AssistantPublic Defender

Attorneys, Collateral Appeals: Terri Backhus, ChristinaSpudeas & 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 werefound in their home in Tavernier Key by concerned neighbors andcoworkers.  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 takenplace.  Mr. MacIvor was dressed in a T-shirt and his underwear. His headwas covered with masking tape so that only part of his nose was exposed. Therewas a blood spot on the shoulder of the T-shirt. The body displayed slightbleeding from the nostrils, and there was evidence of bruising on the neck.

Ms. MacIvor’s body was found in the master bedroom. Her bodywas on the bed on top of the comforter. She was completely naked. Her ankleswere bound with a belt, masking tape and a piece of clothesline rope. Her wristswere 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. Adresser drawer was open in the bedroom that led to the officers to concludethat 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 foundunder the comforter: items that appeared to have come from Ms. MacIvor’s purseas well as her nightshirt and panties. Ms. MacIvor’s nightshirt had been rippedoff with great force and her panties had been cut by a sharp instrument at eachside. 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 thesheets. 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 inthe bedroom curtain. In addition, an address book with pages torn out was alsofound.  The sliding glass doors in the bedroom were open and a box fan wasrunning. There had been a heavy rain storm the night before, which, combinedwith the heat, had left a layer of moisture on Ms. MacIvor’s body.

In the guest room, the sliding glass doors were also open. Aladder 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 hadbeen found outside of the master bedroom door. Outside the house, the phonewires 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 bruisingaround the larynx. The larynx, hyoid bone, and epiglottis had been fractured.There was bruising and an internal contusion which reflected a heavy blow tothe back of the head. There were ligature marks on his neck indicating thedevice was wrapped around his neck several times. Internally, the neck wasunstable and dislocated at the fifth cervical vertebrate. There was internalbleeding in his left shoulder, signifying a severe blow. He also had bruisingin the abdominal area that could have been caused by a strong kick to thestomach.  The cause of death was reported as asphyxiation by ligaturestrangulation. The medical examiner estimated that Mr. MacIvor was consciousfor 10 to 15 seconds after the ligature was placed around his neck, although helimited his opinion by stating that it would have depended upon the amount ofpressure 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. Themedical examiner stated that it appeared that she had moved against theligature causing friction. Her face was discolored due to the partialapplication of the ligature. This caused the blood to enter the head at thenormal rate, but it was unable to exit as quickly, in addition to increasingthe time that it took to render Ms. MacIvor unconscious. Ms. MacIvor was eightmonths pregnant. The medical examiner testified that the male child would havebeen viable if Ms. MacIvor had given birth. The child lived approximately 30minutes after Ms. MacIvor passed away. Evidence indicated that the child triedto breathe while still in the womb.

During the initial stage of the investigation, tests wererun on the stains found on the mattress pads and the sheets, which testedpositive for sperm. The swabs of Ms. MacIvor’s body did not reveal anyspermatozoa. The medical examiner attributed this contradiction to the moistclimate in which Ms. MacIvor’s body was found. This climate provided theenvironment for the seminal fluid to decompose leaving no sperm.

It was at this time that law enforcement initially consideredThomas Overton as a possible suspect. He was suspected in another murder, whichhe was never arrested for. He was a known cat burglar, plus he worked at theAmoco gas station that was located only minutes away from the MacIvor’sresidence.

In June 1993, the bedding samples were sent to FloridaDepartment of Law Enforcement (FDLE) for DNA testing. No match was found atthat time. In 1996, Overton was arrested during the course of a burglary. Whilehe was in custody, FDLE asked Overton for a blood sample. Overton refused.After his refusal and while still in custody, Overton attempted to commitsuicide by cutting his throat. A blood sample was taken from the towels thathad been used during the incident. Preliminary testing of the sample gave law enforcementenough evidence to obtain a court order forcing Overton to relinquish a sampleof his blood. In November 1996, Overton’s DNA was compared to the DNA found onthe bedding sample from the MacIvor murders. The comparison produced a matchwith the probability in excess of one in six billion. In 1998, the samples weresubmitted to another lab for a different DNA test. Again, the comparisonproduced a match with the probability of one in four trillion.

This DNA evidence was presented at Overtons’ trial inaddition to the testimony of two witnesses. The first witness was William GuyGreen. Green testified that Overton admitted to him that he had committed aburglary in a wealthy neighborhood in the Florida Keys. Overton related theevents that occurred to Green stating that he entered the house and fought withthe woman, who had jumped on his back. He also stated that he had fought withanother individual in the house. Overton told Green that he to “waste somebodyin the Keys.” Overton discussed the safety measures that he would utilize whenhe committed burglaries, such as cutting the phone wires to the house, wearinggloves, and bringing along equipment such as a gun, knife, gloves anddisguises. Overton also told Green that the best time to burglarize a house isduring a power outage or a storm.

The second witness was James Zientek. Overton had metZientek in the Monroe County jail in May of 1997. Overton related all of thedetails of the two murders to Zientek so that Zientek could relate to law enforcementthat he had heard the story from another inmate thereby creating reasonabledoubt for Overton. The following events are what Overton told Zientek:

Overton had met Ms. MacIvor at the Amoco station by thevictim’s house where he had worked. He described Ms. MacIvor as being “hot andcold” 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. Hehad 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 inall black with a mask and gloves. He cut the phone wires and then leaned aladder against the balcony. This movement made some noise and subsequently alight came on in the house. Overton waited 20 minutes before entering thehouse. He climbed up the ladder, and when he reached the balcony, he cut theclothesline, “popped” the sliding glass doors in the guest bedroom and enteredthe house. He walked through the house and viewed the MacIvors sleeping.

Overton continued to walk around the house and, at onepoint, he heard a noise and he looked to see Mr. MacIvor walking to the kitchenand then opening the refrigerator. According to Overton, Mr. MacIvor must havesensed that something was wrong because he began to look around and Overtonpanicked. Overton came at Mr. MacIvor from behind and hit him in the head witha pipe from the house. Mr. MacIvor was not rendered unconscious immediately, soOverton hit him with his fists to knock him out. At this point, Ms. MacIvor ranout of the bedroom, and Overton then chased her back into the bedroom. Overtontied 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 aboutMr. MacIvor coming to. He went back to the living room and placed a sock overMr. MacIvor’s eyes and put masking tape around his entire head. Overton’srationale for this behavior was that he did not want Mr. MacIvor’s eyes to popout of his head, and he knew that his nose would bleed. Overton went back tothe 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 sawmovement in Ms. MacIvor’s stomach and placed his hand on her belly to feel thefetus move. Overton returned to the living room and saw that Mr. MacIvor was“just becoming conscious.” Overton proceeded to kick Mr. MacIvor in the stomachand then strangle him.

Overton also told Zientek that he did not know about thebullet hole and that he tore pages out of the address book to make the sceneappear as if the assailant wanted to remove their name from the book. Overtonadmitted that his intent when he entered the house was to rape Ms. MacIvor.

At the trial, the defense rested solely on the notion thatthe stains on the bedding had been planted by law enforcement officials;specifically, that a detective had collected some of Overton’s sperm fromOverton’s girlfriend and then brought the sample to the crime scene in acondom. Nonoxymol-9 had been found in the samples, but it could not beascertained whether the substance, used both as a spermicide and as a cleaningagent, 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 wassentenced to life for Armed Burglary and 10 years for each of the other twocharges.

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 BatteryInvolving 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 ofinterests.

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 withdrewas 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 BatteryInvolving 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 HabeasCorpus

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 ofthe Sentence:

The eight years from the indictment to the trial delayed thecase’s progression.

Case Information:

Overton filed a direct appeal to the Florida Supreme Courton 04/22/99. The main issues raised in the appeal were that the trial courterred in denying the defense challenges for cause of two prospective jurors. Inreference to this issue, reversible error is constituted if there was error inthe denial of challenges for both jurors. The Court ruled that one of the jurorsshould have been excused for cause but that the trial could did not abuse itsdiscretion by not granting the challenge for cause in the case of the secondjuror; therefore, reversible error was not established. In regard to thesentencing phase of the trial, Overton asserted that the trial court erred innot considering certain available mitigation, even though Overton refused topresent any mitigation at the sentencing hearing. The Court stated that thetrial court did not commit any error in its consideration and evaluation of theavailable mitigating evidence. The Court affirmed the conviction and sentenceon 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 theUnited 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 CircuitCourt.  The motion was amended on 10/31/03.  The motion was denied on02/14/05.

Overton filed a 3.853 Motion (DNA) to the Circuit Court on04/03/03, which was denied on 08/19/04.

On 10/27/04, Overton filed a 3.853 Appeal (DNA) to theFlorida Supreme Court.  On 06/01/05, Overton filed a 3.850 Appeal to theFlorida 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 on07/21/05.  The Florida Supreme Court denied Overton’s 3.853 Appeal on11/26/07.  On 12/14/07, Overton filed a motion for rehearing, which wasdenied on 02/25/08.  On 03/12/08, the Florida Supreme Court issued aMandate in this case.

On 06/01/05, Overton filed a 3.850 Appeal to the FloridaSupreme Court.  On 07/21/05, the Court issued an order to consolidate withthe 3.853 (DNA) Appeal.  The Florida Supreme Court affirmed the trialcourt’s denial of the 3.850 Motion on 11/26/07.  On 12/14/07, Overtonfiled 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 HabeasCorpus to the Florida Supreme Court, which was denied on 11/26/07.  On12/14/07, Overton filed a motion for rehearing, which was denied on02/25/08.  On 03/12/08, the Florida Supreme Court issued a Mandate in thiscase.

Institutional Adjustment:

________________________________________________________________________

Report Date:  06/05/02          NMP

Approved:      06/10/02          WS

Updated:        05/06/09          AEH