IN THE SUPREME COURT OF FLORIDA

CASE NO. 96,818

TERRY MELVIN SIMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR SEMINOLE COUNTY, FLORIDA

APPLICATION FOR STAY OF EXECUTION

COMES NOW, Terry Melvin Sims, by and through his undersigned counsel, and

applies to this Court for a stay of his execution currently scheduled for February 23,

2000 at 7:00 a.m. Through counsel, Mr. Sims states the following grounds for granting

this Application:

On January 25, 2000, before his execution date was set, Mr. Sims timely filed

in the United States Supreme Court a petition for writ of certiorari. Mr. Sims’s petition

asks the Court to review the decision rendered by this Court on October 27, 1999, in

 

1 After the Governor scheduled Mr. Sims’s execution, counsel filed an Application for Stay of Execution in the United States Supreme Court. The Court returned that application because, although this Court had stayed Mr. Sims’s execution incident to this appeal, that stay expired. Following the issuance of this Court’s mandate, Mr. Sims had not requested that this Court stay the newly set execution date incident to this appeal.

2 the above-styled cause. Mr. Sims now respectfully asks this Court to enter and order

staying his execution pending disposition of his petition for writ of certiorari.1

A stay of execution is appropriate upon the showing made herein. See Buenoano

v. State, 708 So.2d 941, 951 (Fla. 1998), citing Barefoot v. Estelle, 463 U.S. 892

(1983).

Mr. Sims’s case presents substantial claims of innocence and a violation of

Brady v. Maryland, 373 U.S. 83 (1963). Mr. Sims argues that the "State’s failure to

provide the information contained in [a Gainesville police] report," Sims v. State, Case

No. 96,818, at 7 (Fla. Oct. 27, 1999), violated the Due Process Clause of the

Fourteenth Amendment. The suppressed police report contained material information

which would have supported the "main theory of defense [which] was mistaken

identity," and aided in the "defense attempt[] to discredit [Curtis] Baldree and [James

"B.B."] Halsell. Sims v. State, 444 So.2d 922, 924 (Fla. 1984). "Curtis Baldree and

B.B. Halsell were the State’s chief witnesses" at trial, id. at 923, and were held to have

provided "the strongest identifications in the record . . . ." Sims v. State, 602 So.2d

 

3 1253, 1256 (Fla. 1992).

From the information contained in the suppressed report Mr. Sims learned, and

the trial court found, that after the trial Halsell admitted that he testified falsely when

he implicated Mr. Sims. The trial court also credited a witness’ account of Baldree

acknowledging that he falsely accused Mr. Sims.

Mr. Sims learned from the information contained in the suppressed report that

Baldree and Halsell planned the crime for which Mr. Sims was sentenced to death with

Terry Wayne Gayle, the look-a-like for whom Mr. Sims has always said he was

mistaken by witnesses who did not identify him prior to trial, but did after they were

subjected to an unreliable hypnosis technique. See Sims, 444 So.2d at 924 (at trial

"defense presented evidence of [Mr. Sims’s] resemblance to another individual said to

be a frequent criminal associate of Baldree and Halsell"); Sims, 602 So.2d at 1255

(with hypnosis technique used on identification witnesses "there was a possibility of

confabulation" so that "any information obtained by hypnosis should be corroborated").

There is no question that Mr. Sims has made a substantial showing of the denial

of a constitutional right, or that reasonable jurists differ as to his entitlement for relief.

See Barefoot, 463 U.S. at 893 n.4 (stay mandated where petitioner "demonstrate[s] that

the issues are debatable among jurists of reason; that a court could resolve the issues

(in a different manner); or that the questions are adequate to deserve encouragement

 

4 to proceed further").

In 1992, prior to the fully credited evidence that Halsell and Baldree falsely

accused Mr. Sims, two Members of this Court had already concluded that Mr. Sims

was entitled to a new trial. Sims, 602 So.2d at 1259 (Kogan & Barkett, JJ., dissenting).

Writing on behalf of himself and Justice Barkett, Justice Kogan described the points

on which Justices differed:

Contrary to the majority’s suggestion, the State’s case against Sims was far from rock-solid. It was little more than a rickety conglomeration of two things: unbelievable "memories" retrieved through he superhuman "zoom" vision of mesmerized witnesses, and unreliable statements of drug-abusing codefendant-felons who faced near certain death if they did not please the prosecutor. * * * Indeed, I have not the slightest particle of confidence in the outcome of this trial.

Ibid.

A stay is appropriate where reasonable jurists differ over such a showing.

Barefoot, supra.

Mr. Sims will certainly suffer irreparable harm is he is executed for a crime he

did not commit pending final disposition of his claims.

The State will suffer no prejudice from this stay. Mr. Sims will remain in the

custody of the Florida Department of Corrections.

For the foregoing reasons, Terry Melvin Sims, through counsel, respectfully

 

5 requests that this Court enter an order staying his execution pending final disposition

of the claims raised in this appeal and on his petition or writ of certiorari in the United

States Supreme Court.

Respectfully submitted,

RICHARD JORANDBY Public Defender

______________________________ STEVEN H. MALONE Fla. Bar No. 305545 Assistant Public Defender MARK E. OLIVE Fla. Bar No. 057833 Special Assistant Public Defender TIMOTHY P. SCHARDL Fla. Bar No. 0073016

 

6 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Application for Stay of Execution is being sent via facsimile transmission, copy to follow by United States mail, first class postage prepaid, Kenneth S. Nunnelley, Assistant Attorney General, Office of the Attorney General, 444 Seabreeze Blvd., Daytona Beach, Florida 32118-3958, this 9 th day of February, 2000.

RICHARD JORANDBY Public Defender 15th Judicial Circuit of Capital Crimes Division 421 Third Street, Sixth Floor West Palm Beach, Florida 33401 (407) 355-7707

______________________________ STEVEN H. MALONE Fla. Bar No. 305545 Assistant Public Defender *MARK E. OLIVE Fla. Bar No. 057833 Special Assistant Public Defender TIMOTHY P. SCHARDL Fla. Bar No. 0073016 Special Assistant Public Defender LAW OFFICES OF MARK E. OLIVE, P.A. 320 West Jefferson Street Tallahassee, FL 32301 (850) 224-0004 (850) 224-3331 (facsimile) Attorneys for Terry Melvin Sims

* Counsel of Record