Thomas Michael Overton

Case information

Defendant: Thomas Michael Overton (born 11/05/55) DOB: 11/05/55 Age: Sixteen judicial circuit, Monroe County Courts and case numbers:

• Sixteenth Judicial Circuit, Monroe County — Case# 96-30167-CF
• Direct appeal to the Florida Supreme Court — SC95404
• Appeal — 3d07-85
• DC# 911193 Sentencing judge: The Honorable Mark H. Jones Trial attorney: Jason Smith – Private Attorney Direct appeal attorney: Maria E. Lauredo – Assistant Public Defender Collateral appeals: Terri Backhus, Christina Spudeas & Linda Mroz – CCRC-S

Timeline

• 08/22/91 — The bodies of Susan and Michael MacIvor were found in their home in Tavernier Key by concerned neighbors and coworkers.
• 12/09/91 — Indicted: 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.
• 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.
• 12/18/96 — Defendant entered a written plea of not guilty.
• 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) and death by a vote of 9-3 (Susan Michelle MacIvor).
• 03/18/99 — Sentenced: 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.
• 04/22/99 — Overton filed a direct appeal to the Florida Supreme Court.
• 09/13/01 — The Florida Supreme Court affirmed the conviction and sentence.
• 12/03/01 — Rehearing was denied and the mandate was issued.
• 03/13/02 — Overton filed a petition for a Writ of Certiorari to the United States Supreme Court.
• 05/13/02 — The petition was denied.
• 04/30/03 — Overton filed a 3.851 Motion to the Circuit Court; the motion was amended on 10/31/03.
• 02/14/05 — The 3.851 Motion was denied.
• 04/03/03 — Overton filed a 3.853 Motion (DNA) to the Circuit Court.
• 08/19/04 — The 3.853 Motion (DNA) was denied.
• 10/27/04 — Overton filed a 3.853 Appeal (DNA) to the Florida Supreme Court.
• 06/01/05 — Overton filed a 3.850 Appeal to the Florida Supreme Court.
• 06/02/05 — Overton filed a motion to consolidate the appeals (3.853 Appeal (DNA) and 3.850 Appeal); consolidation was granted on 07/21/05.
• 02/08/06 — Overton filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court.

The offence

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 the house:

• Mr. MacIvor’s body was found in the living room. The room appeared as if a struggle had taken place. He 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. A blood spot was on the shoulder of the T-shirt. There was slight bleeding from the nostrils, and there was evidence of bruising on the neck.
• Ms. MacIvor’s body was found in the master bedroom 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, leading officers to conclude that articles used to secure Ms. MacIvor belonged to the victims. Her eyes were covered with masking tape.
• Several items were found under the comforter, appearing 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, and 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.
• An address book with pages torn out was found.
• Sliding glass doors in the bedroom were open and a box fan was running.
• The sliding glass doors in the guest room 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 was found outside of the master bedroom door.
• Outside the house, the phone wires had been cut with a sharp instrument.

Investigation

During the initial stage of the investigation, tests were run on the stains found on the mattress pads and the sheets; the tests 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; the climate provided the environment for the seminal fluid to decompose leaving no sperm.

At this time, law enforcement initially considered Thomas Overton as a possible suspect. He was suspected in another murder, which he was never arrested for. He was described as a known cat burglar, and he worked at the Amoco gas station 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, and 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; the comparison produced a match with the probability of one in four trillion.

A .22-caliber shell casing and a bullet hole in the bedroom curtain were found at the scene.

Arrest and prior criminal history

During October 1996, Overton was convicted of:

• Armed Burglary
• Possession of Burglary tools
• Carrying a Concealed Firearm

He was sentenced to life for Armed Burglary and 10 years for each of the other two charges.

In 1996, Overton was arrested during the course of a burglary and refused to provide a blood sample when asked by FDLE.

While still in custody after his refusal, Overton attempted to commit suicide by cutting his throat.

Trial

Charges

Overton was 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

Plea and counsel

• The Public Defender’s office filed a motion to withdraw due to conflict of interests on 11/20/96, and the motion to withdraw as counsel was granted on 12/02/96.

Evidence presented

Overton’s DNA evidence was presented at trial, along with testimony of two witnesses.

William Guy Green

William Guy Green testified that Overton admitted to him that he had committed a burglary in a wealthy neighborhood in the Florida Keys. Overton related events to Green, stating he entered the house and fought with the woman, who had jumped on his back, and that he had fought with another individual in the house. Overton told Green that he to “waste somebody in the Keys.” Overton discussed safety measures he would utilize when he committed burglaries, including cutting the phone wires to the house, wearing gloves, and bringing along equipment such as a gun, knife, gloves and disguises. Overton told Green that the best time to burglarize a house is during a power outage or a storm.

James Zientek

James Zientek testified that 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.

Overton’s account to Zientek included:

• Overton said he had met Ms. MacIvor at the Amoco station by the victim’s house where he had worked.
• Overton 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 said he had gotten Ms. MacIvor’s address from one of her checks and had observed the house prior to the night of the murder on several occasions.
• Overton said that on the night of 08/21/91, he went to the MacIvor’s home, dressed in all black with a mask and gloves, cut the phone wires, leaned a ladder against the balcony, waited 20 minutes before entering, climbed up the ladder, cut the clothesline, “popped” the sliding glass doors in the guest bedroom and entered the house.
• Overton said he walked through the house and viewed the MacIvors sleeping, and that he continued to walk around the house until he heard a noise, saw Mr. MacIvor walking to the kitchen and opening the refrigerator, and then panicked.
• Overton said he came at Mr. MacIvor from behind and hit him in the head with a pipe from the house; Overton said Mr. MacIvor was not rendered unconscious immediately, so Overton hit him with his fists to knock him out.
• Overton said Ms. MacIvor ran out of the bedroom, and Overton chased her back into the bedroom.
• Overton said he tied her up with items found in the bedroom and tried to talk to Ms. MacIvor telling her that if everyone cooperated no one would get hurt.
• Overton said Ms. MacIvor told Overton that she knew who he was; Overton said he became concerned about Mr. MacIvor coming to.
• Overton said he went back to the living room, placed a sock over Mr. MacIvor’s eyes, and put masking tape around his entire head; Overton said his rationale was that he did not want Mr. MacIvor’s eyes to pop out of his head and he knew his nose would bleed.
• Overton said he raped Ms. MacIvor and then strangled her because he didn’t “want to leave any witnesses.”
• Overton said 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 said he returned to the living room and saw that Mr. MacIvor was “just becoming conscious,” proceeded to kick Mr. MacIvor in the stomach, and then strangled him.
• Overton told Zientek 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.

Defense

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.

Verdict and recommendations

Sentencing

On 03/18/99, the court sentenced Overton:

• 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

Appeals

Overton filed a direct appeal to the Florida Supreme Court on 04/22/99. The main issues raised were that the trial court erred in denying the defense challenges for cause of two prospective jurors. Reversible error was described as being 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 court 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.

Overton also 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 Florida Supreme Court affirmed the conviction and sentence on 09/13/01.
• Rehearing was denied and the mandate was issued on 12/03/01.

United States Supreme Court

• 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.

State post-conviction proceedings

• 04/30/03 — Overton filed a 3.851 Motion to the Circuit Court; it was amended on 10/31/03. The motion was denied on 02/14/05.
• 04/03/03 — Overton filed a 3.853 Motion (DNA) to the Circuit Court; it was denied on 08/19/04.
• The appeal was described as currently pending.
• 02/08/06 — Overton filed a Petition for Writ of Habeas Corpus to the Florida Supreme Court; it was also pending.

Medical examiner findings (autopsy)

The medical examiner testified to findings from the autopsy:

Mr. MacIvor

• 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 reflecting 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.
• 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, limiting the opinion by stating it would have depended upon the amount of pressure that was used.

Ms. MacIvor

• Ms. MacIvor had several abrasions on her face, genitals and legs in addition to ligature marks around her neck and wrists.
• The medical examiner stated it appeared she had moved against the ligature causing friction.
• Her face was discolored due to 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, increasing the time it took to render Ms. MacIvor unconscious.

Pregnancy and the fetus

• Ms.
• 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.

Other details

Scene details referenced in the background narrative

Additional details in the background narrative included:

• Agents were sent to Columbia to investigate after the sheriff’s office received a call from an FAA official in Miami; an informant claimed knowledge of two Columbian drug smugglers responsible for the murders.
• An FBI profiler was called in to aid in the investigation, and a case worker by the name of Dayle Hinman concluded the killing was not drug oriented and that Ms. MacIvor had been the target.
• Dayle Hinman believed the killing was not a burglary that had gone awry and that it was premeditated; items used to kill and bind the victims were described as household items found at the scene.
• The narrative stated that Hinman deduced a professional would have been more prepared and would have brought their own “tools of the trade.”
• The narrative described the attack on Michael MacIvor as being done with a pipe commonly used to secure a sliding glass door and that he was then strangled in the living room; it described his eyes and mouth as bound with tape.
• The narrative described Ms. MacIvor’s hands and feet as bound with a belt from a dresser drawer; it described her as sexually assaulted and then strangled with the belt from a bath rob.

Overton’s work and proximity

The background narrative described:

• Overton as having worked at a convenience store on the corner at the time of the killings and that Ms. MacIvor frequently shopped and bought gas there.
• Overton’s close proximity and criminal record as making him the prime suspect.
• The narrative stated that the only evidence connecting Overton to the murders was the DNA collected from the semen sample left on the bedding.
• During the year or so Overton spent in jail on the burglary charges, he repeatedly refused to give a DNA sample.
• The narrative described Overton becoming depressed and thought to have become suicidal while doing time in county lock up.

Media and trial timing (as described in the background narrative)

The background narrative included:

• “A ten day trial, complete with local media circus began later that year.”
• “The jury deliberated less than two hours before coming back with a verdict of guilty on all charges.”
• “One month later he was sentenced to death.”
• “Almost five years after the murders the case was finally closed.”
• “Thomas Overton waits on death row to this day.”
• Overton filed papers for a new trial claiming his defense was inadequate. The narrative said it was almost eighteen years since the murders.

Prior investigation leading to DNA results (as described in the background narrative)

The background narrative stated:

• Lead Detective Jerry Powell devised a plan to recover a blood sample.
• Overton was given a razor in his cell to shave with; a close but loose watch was kept on the prisoner.
• The guards rushed in to save his life.
• Six weeks later Sergeant Powell received a phone call from the Crime Lab; the narrative stated there was “a one in six billion chance that someone other than Overton had committed the crime.”

Names used in the narrative

The background narrative referred to:

• “Missy and Michael” (corresponding to Ms. MacIvor and Mr. MacIvor).
• “Michael MacIvor waits” was not used; the narrative used “Thomas Overton waits on death row to this day.”

Quotes and verbatim phrases

The record included the following verbatim phrases from witness testimony and from Overton’s reported statements to witnesses:

• Overton told William Guy Green: “waste somebody in the Keys.”
• Overton described Ms. MacIvor as being “hot and cold” and “bitchy.”
• Overton said he “popped” the sliding glass doors in the guest bedroom.
• Overton told Zientek his rationale: he didn’t “want to leave any witnesses.”
• Overton described Mr. MacIvor as “just becoming conscious.”