          Supreme Court of Florida
                                   _____________

                                   No. SC16-1178
                                   _____________


                        KAYLE BARRINGTON BATES,
                                Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.


                                   [May 18, 2017]



PER CURIAM.

      Kayle Barrington Bates, a prisoner under sentence of death, appeals the

circuit court’s order summarily denying his successive motion for postconviction

DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      Bates previously moved for postconviction DNA testing of several items of

evidence from the crime scene, which the circuit court denied and this Court

affirmed. Bates v. State, 3 So. 3d 1091, 1097-98 (Fla. 2009). In his current
motion, Bates seeks DNA testing of ten items, seven of which were previously

requested in his first rule 3.853 motion. Specifically, Bates again seeks DNA

testing of the following items, rearguing that he did not commit the murder and

that the results of testing on these items would exonerate him: (1) the victim’s

panties; (2) the victim’s vaginal swab; (3) semen smear slides; (4) the victim’s skirt

and hosiery; (5) an acid phosphatase test; (6) the victim’s vaginal washing; and (7)

the blue cord used to strangle the victim. In denying Bates’ prior motion, we

rejected Bates’ argument that DNA testing on these items would produce a

reasonable probability of his exoneration in light of the “accumulation of

evidence” establishing his identity as the perpetrator. Id. at 1099. Because Bates

seeks to relitigate questions of law already decided by this Court, his claims as to

these seven items are procedurally barred. See Zeigler v. State, 116 So. 3d 255,

258 (Fla. 2013) (holding defendant’s successive rule 3.853 motion was

procedurally barred because his prior motion raising the same claims was denied

by the trial court and affirmed by this Court).

      Further, we affirm the circuit court’s denial of DNA testing on the three

remaining items not subject to the procedural bar. Regarding the first two items,

Bates alleges that debris from the victim’s clothing, which includes a Caucasian

hair sample that Bates alleges could not be his because he is African American,

and the victim’s fingernail clippings could contain DNA of the actual killer and


                                         -2-
therefore exonerate him. Bates further argues that if DNA testing on these items

excludes his DNA, he would also be exonerated. Like the seven items for which

DNA testing has already been denied, favorable testing from these additional items

would not establish that Bates is not the perpetrator, as the evidence of Bates’ guilt

is overwhelming:

      Bates was arrested at the scene of the crime just minutes after the
      victim’s death. He had the victim’s diamond ring in his pocket, and
      he tried to conceal it from law enforcement officers. A watch pin
      consistent with Bates’ watch was found inside the victim’s office, and
      Bates’ watch was missing a watch pin. Footprints consistent with
      Bates’ shoes were found behind the State Farm office building[,
      where the victim’s body was found]. Bates’ hat was found near the
      victim’s body. Two green fibers were found on the victim’s
      clothing—one on her blouse and one on her skirt—that were
      consistent with the material that Bates’ pants were made of. A knife
      case was found near the victim’s body, and that case was identified by
      various witnesses as being the exact type that Bates wore. The
      victim’s two fatal stab wounds were consistent with the type of buck
      knife that Bates carried in that case. The consistency between the stab
      wounds and Bates’ knife was striking; the wounds were four inches
      deep, and Bates’ knife was four inches long; the width of the wounds
      was consistent with the width of Bates’ knife; and . . . there were
      abrasions at the bottom of the wound that were consistent with marks
      that Bates’ knife would have made. Bates’ statements to investigators
      and at his trial also placed him either at the scene of the crime or
      directly involved in the victim’s murder. Bates stated during a
      telephone call to his wife after his arrest that he killed a woman.

Bates, 3 So. 3d at 1099.

      In light of this evidence, the absence of Bates’ DNA or the presence of an

unknown male contributor’s DNA on the debris would not imply that Bates is not

the perpetrator. Similarly, DNA testing of the hair sample would not conclusively

                                         -3-
identify the perpetrator, as there is no way of knowing when, where, and how the

hair (if it is not the victim’s) was deposited on the victim’s clothing. See Overton

v. State, 976 So. 2d 536, 568 (Fla. 2007). For the same reason, results from testing

the victim’s fingernail clippings would not establish that Bates is not the

perpetrator. See Hodgkins v. State, 175 So. 3d 741, 756 (Fla. 2015) (Canady, J.,

dissenting) (explaining that DNA is often deposited under fingernails through

casual contact); see also State v. Fitzpatrick, 118 So. 3d 737, 770 (Fla. 2013)

(noting the lack of any scientific method to determine when DNA was deposited).

Finally, regarding the third item, because Bates’ other requests for testing were

properly denied, there is no reasonable probability that testing the victim’s blood

sample, hair, and saliva standards for comparison with the other requested items

would exonerate him. In light of the overwhelming evidence of Bates’ guilt, there

is no reasonable probability that the results of DNA testing on these three

additional items would have resulted in his acquittal or reduced his sentence.

      Accordingly, we affirm the circuit court’s order denying Bates’ successive

motion for postconviction DNA testing.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.

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


                                         -4-
An Appeal from the Circuit Court in and for Bay County,
     Harry Hentz McClellan, Judge - Case No. 031982CF000661XXAXMX

Seth E. Miller and Melissa Montle of Innocence Project of Florida, Inc.,
Tallahassee, Florida; and Rachel Day, Assistant Capital Collateral Regional
Counsel, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel,
Southern Region, Fort Lauderdale, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant
Attorney General, Tallahassee, Florida,

      for Appellee




                                       -5-
