i

This proceeding involves the appeal of the circuit court's

denial of Mr. King’s Successive Motion to Vacate Judgement and

Sentence, Request for Evidentiary Hearing and Stay of Execution.

The motion was brought pursuant to Fla. R. Crim. Proc. 3.850.

The following symbols will be used to designate references to

the record in the instant case:

"R." -- The record on direct appeal to this Court.

"PC-R." -- The post-conviction record.

"HR."-- The record of the hearing on December 10, 2001.

"Huff." -– The record of the Huff hearing December 21, 2001.

"EX."-- The exhibits attached to the Successive Motion to

Vacate Judgement and Sentence file by Mr. King on December 18,

2001.

This Court has set oral argument for January 15, 2002, at 9:00

a.m.

ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . vii

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . 1

FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 7

Issue I . . . . . . . . . . . . . . . . . . . . . . . . . 7

Issue II . . . . . . . . . . . . . . . . . . . . . . . . . 7

Issue III . . . . . . . . . . . . . . . . . . . . . . . . 8

Issue IV . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issue V . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issue VI . . . . . . . . . . . . . . . . . . . . . . . . . 9

Issue VII . . . . . . . . . . . . . . . . . . . . . . . . 9

Issue VIII . . . . . . . . . . . . . . . . . . . . . . . . 9

ISSUE I

THE COURT’S LEGAL CONCLUSION THAT THE VAGINAL WASH AND RECTAL

SWAB WAS DESTROYED IN 1977-1979 NOT IN BAD FAITH WAS ERROR.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

THE STANDARD OF REVIEW . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 10

ISSUE II

THE TRIAL COURT ERRED IN ITS DENIAL OF Mr. KING’S CLAIM THAT

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO DISCOVER WHETHER

THE VAGINAL WASHINGS WERE DESTROYED, FAILURE TO REQUEST

INDEPENDENT EXAMINATION OF SAID EVIDENCE, AND FAILURE TO CROSS

EXAMINE THE MEDICAL EXAMINER ON THE POLICIES INVOLVED IN THE

DESTRUCTION OF EVIDENCE, CHAIN OF CUSTODY AND DOCUMENTATION

REGARDING THE DESTRUCTION OF SAID EVIDENCE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

ISSUE III

THE TRIAL COURT ERRED IN THE DENIAL OF MR. KING’S CLAIM THAT

COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY QUESTION

POTENTIAL JURORS ABOUT THEIR VIEWS AND THEIR RELATIONSHIPS

WITH LAW ENFORCEMENT OFFICERS. COUNSEL ALSO FAILED TO DISCOVER

AND REMOVE BIASED JURORS, AND TO PRESERVE THE ISSUE FOR APPEAL.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ISSUE IV

THE TRIAL COURT ERRED IN THE DENIAL OF MR. KING’S CLAIM THAT

MR. KING IS ACTUALLY INNOCENT OF FIRST DEGREE MURDER AND

FELONY MURDER AND OF THE DEATH PENALTY. TO EXECUTE A PRISONER

UNDER THE CLOUD OF DOUBT AS TO GUILT IS A VIOLATION OF MR.

KING’S CONSTITUTIONAL RIGHTS.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ISSUE V

THE TRIAL COURT ERRED IN THE DENIAL OF MR. KING’S CLAIM THAT

MR. KINGS DUE PROCESS AND EQUAL PROTECTION RIGHTS AS

GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED

WHEN THE COURT APPOINTED INEFFECTIVE POST CONVICTION COUNSEL

WHO FAILED TO RAISE MERITORIOUS ISSUES WHICH ARE NOW

FORECLOSED DUE TO PROCEDURAL BAR. . . . . . . . . . . . 32

ISSUE VI

THE FLORIDA DEATH SENTENCING STATUTE AS APPLIED IS

UNCONSTITUTIONAL UNDER THE FIFTH, SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ISSUE VII

THE TRIAL COURT ERRED IN THE DENIAL OF MR. KING’S CLAIM THAT

FLORIDA’S PROCEDURES FOR LETHAL INJECTION CONSTITUTE CRUEL

AND/OR UNUSUAL PUNISHMENT AND ITS USE OF LETHAL INJECTION IS

UNCONSTITUTIONAL BECAUSE OF SEVERE PAIN AND MUTILATION ARE

INFLICTED ON THE CONDEMNED PRISONER.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

iv

ISSUE VIII

THE TRIAL COURT ERRED IN THE DENIAL OF MR. KING’S CLAIM THAT

MR. KING’S RIGHTS UNDER THE FOURTH, FIFTH, SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

HIS CORRESPONDING RIGHTS UNDER THE FLORIDA CONSTITUTION WERE

VIOLATED BY THE STATE’S EX-PARTE COMMUNICATIONS WITH THE COURT

AND THE STATE’S AND COURT’S UNDISCLOSED CONSIDERATION GIVEN TO

STATE WITNESSES IN EXCHANGE FOR THEIR TESTIMONY.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CONCLUSION AND RELIEF SOUGHT

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 41

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 43

v

Apprendi v. New Jersey,

530 U.S. 466

120 S.Ct. 2348, 2355 (2000) . . . . . . . . . . . 9, 35, 36

Arizona v Youngblood,

488 U.S. 51, 109 S.Ct. 333 (1988) . . . . . . . . . 10, 24

Brady v. Maryland,

373 U.S. 83,

83 S.Ct. 1194 (1963) . . . . . . . . . . . . . . . . . . 39

Coleman v. Thompson,

501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . 33

Estelle v. Gamble,

429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . 37

Ford v. Lockhart,

81 F.Supp. 1447, 1453(E.D. Ark. 1994) . . . . . . . . . 31

Giglio v. United States,

405 U.S. 150,

92 S.Ct. 763 (U.S. 1971) . . . . . . . . . . . . . . . . 39

Gregg v. Georgia,

428 U.S. 153, 173 (1976) . . . . . . . . . . . . . . . . 37

Holdren v Legursky,

Jones v. United States,

526 U.S. 227, 243, n.6 (1999) . . . . . . . . . . . . . 35

Kelley v State,

569 So. 2d 754 (Fla. 1990) . . . . . . . . . . . . . . . 14

King v. Dugger,

555 So.2d 355 (Fla. 1990) . . . . . . . . . . . . . . . . 2

King v. Moore,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

vi

King v. State,

390 So.2d 315 (Fla. 1980) . . . . . . . . . . . . . . 1, 20

King v. State,

407 So.2d 904 (Fla. 1981) . . . . . . . . . . . . . . . . 1

King v. State,

514 So.2d 354 (Fla. 1987) . . . . . . . . . . . . . . . . 2

King v. State,

597 So.2d 780 (Fla. 1992) . . . . . . . . . . . . . . . . 2

King v. Strickland,

King v. Strickland,

514 U.S. 419,

115 S.Ct. 1555 (U.S. 1995) . . . . . . . . . . . . . . . 39

Lambrix v State,

698 So. 2d 247 (Fla. 1996) . . . . . . . . . . . . . 34, 39

Louisiana ex. rel. Francis v. Resweber,

329 U.S. 459 (1947) . . . . . . . . . . . . . . . . . . 37

Mills v. Moore,

786 So.2d 532 (Fla. 2001) . . . . . . . . . . . . . . . 35

Monson v. State,

Smith v. State,699 So.2d 629, 636 (Fla. 1997) . . . . . 28

Murray v. Carrier,

477 U.S. 478,496 (1986) . . . . . . . . . . . . . . . . 30

Peede v State,

748 So.2d 253 (Fla. 1999) . . . . . 25, 26, 27, 29, 34, 40

Pennsylvania v. Finley,

481 U.S. 551, 551 (1987) . . . . . . . . . . . . . . . . 33

Rhodes v. Chapman,

452 U.S. 337, 346 (1981) (quoting

Gamble, 429 U.S. at 103) . . . . . . . . . . . . . . . . 37

vii

Rogers v. State,

511 So.2d 526, 531 (Fla. 1987) . . . . . . . . . . . . . 18

Rose v. State,

601 So.2d 1181 (Fla. 1992) . . . . . . . . . . . . . . . 39

Sawyer v. Whitley,

505 U.S. 333, 339-342 (1992) . . . . . . . . . . . . . . 30

Schllup v. Delo,

115 S.Ct. 851, 867, 868 n.47(1995) . . . . . . . . . . . 30

Sireci v State,

773 So. 2d 34,41 N.14 (Fla. 2000) . . . . . . . 31, 36, 38

Strickland v Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . 25

Stuart v State,

907 P.2d 783 (Id. 1995) . . . . . . . . . . . . . . 22, 23

United States v Deaner,

1 F.3d 192 200,201 (3d Cir. 1993) . . . . . . . . . . . 15

United States v Elliott,

83 F.Supp. 2d 637 (E.D. Va. 1999) . . . . . . . . . . . 21

United States v. Vera,

CR No. 00-309-BR . . . . . . . . . . . . . . . 14, 20, 21

Williams v State,

777 So. 2d 947 (Fla. 2000) . . . . . . . . . . . . . 34, 39

1

Mr. King was charged by indictment with first-degree murder,

sexual battery, burglary and arson On April 7, 1977. The case was

consolidated during voir dire with another case charging Mr. King

with attempted murder and escape. The consolidated cases were

tried before the Circuit Court Judge John Andrews. Mr. King was

represented by Thomas Cole of the Public Defender’s Office.

The jury found Mr. King guilty on all counts. At the penalty

phase, the jury recommended death. The trial court followed the

recommendation and sentenced Mr. King to death.

On direct appeal, the Florida Supreme Court affirmed the

conviction and sentence of death. King v. State, 390 So.2d 315

(Fla. 1980). Mr. King sought post-conviction relief, but was

denied by the circuit court. On appeal, the Florida Supreme Court

affirmed the denial of post-conviction relief. King v. State, 407

So.2d 904 (Fla. 1981). Mr. King filed a Petition for Writ of

Habeas Corpus in the United States District Court, Middle District

of Florida in 1981. The district court denied relief, however on

appeal, Mr. King’s sentence of death was vacated by the Eleventh

Cir. 1984); previous history, King v. Strickland, 714 F.2d 1481

Mr. King was resentenced and death was again imposed. The

Florida supreme Court affirmed the conviction and sentence of

2

death. King v. State, 514 So.2d 354 (Fla. 1987). A Petition for

Writ of Habeas Corpus was filed by Mr. King, as well as a Motion

for Post-conviction Relief. An evidentiary hearing was conducted

in the circuit court on the Motion for Post-conviction Relief, and

relief was denied. The Florida Supreme Court affirmed the denial

of post-conviction relief. King v. State, 597 So.2d 780 (Fla.

1992). The Florida Supreme Court also denied Mr. King’s Petition

for Writ of Habeas Corpus. King v. Dugger, 555 So.2d 355 (Fla.

1990).

In October of 1992, Mr. King filed a Petition for Writ of

Habeas Corpus in the United States District Court, Middle District

of Florida. The District Court denied relief on May 12, 1998. An

appeal of the denial was filed with the Eleventh Circuit Court of

Appeals in May of 1999. On November 30, 1999, the Eleventh Circuit

1999). During the spring of 1997, Mr. King filed a pro-se Petition

for Writ of Habeas Corpus in the Florida Supreme Court. Mr. King’s

pro-se pleading was denied by the Florida Supreme Court in an

unpublished order filed on March 28, 1997. A subsequent Motion for

Rehearing on said petition was denied in an unpublished order filed

on May 30, 1997.

On November 19, 2001, a death warrant was signed scheduling

Mr. King’s execution for January 24, 2002. Mr. King filed a

Successive Motion to Vacate Judgement and Sentence on December 18,

3

2001. The circuit court denied Mr. King’s motion on January 1,

2002. Mr. King now files this appeal of the order of the circuit

court.

1. DNA testing is a scientifically reliable procedure used

to establish identity. (EX. 1).

2. Joan Wood, former Medical Examiner for Pinellas County,

testified at trial that on March 18, 1977, she performed an autopsy

upon the victim in this case, Natalie Brady. Wood found the

presence of motile sperm in the fluid from the vagina of the

victim. This vaginal fluid, or washing, was a mixture of blood and

semen. (R.1797).

3. At Defendant’s trial, one Marion Hill testified. (R.

1662-1672). Ms. Hill was a medical technologist employed at the

Medical Examiner’s Office. Hill would occasionally perform

laboratory analysis for the Medical Examiner at a laboratory within

All Children’s Hospital. Hill testified that she received the

vaginal washings from Dr. Wood and examined them for the Medical

Examiner at the laboratory within All Children’s Hospital. (R.

1666). Ms. Hill testified Prostatic acid phosphatase was found in

the victim’s vaginal washings. (R.1667). Hill testified as to the

presence of type A secretor and type O blood in the vaginal

washings. (R.1668). Mr. King was identified as possessing type A

secretor blood, while the victim was identified as possessing type

4

O blood. (R. 1668-1669).

4. Mr. King, through counsel, filed a Motion for DNA Testing

and a Motion to Compel Evidence for DNA Testing. (EX. 2). This

Court ordered opposing counsel to respond. A response was filed

Apparently the Office of the State Attorney had begun an

investigation into the DNA evidence in this case months prior, as

the investigation report is dated July of 2001. It was given to

the defense on December 3, 2001.

5. The State’s investigation concludes that the vaginal

washings of the decedent are no longer in existence. According to

Marion Hill, she returned them to Dr. Wood at the Medical

Examiner’s office subsequent to her examination. (EX. 4). Dr. Wood

is never questioned by the State Attorney investigator. Mr. King

filed a motion to take a deposition of Dr. Wood, which was denied.

(EX. 5).

6. Among the exhibits in the State Attorney’s Response was

a lab report indicating that a rectal swab was also obtained and

tested positive for acid phosphatase. (EX. 4). This rectal swab

is likewise unaccounted for.

7. The lab report in regards to the vaginal swab, had

handwritten notations " Vag wash very bloody grossly hemolgized

very difficult to read" MH". (EX. 4).

8. Section 406.13, Florida Statutes (1973), was in effect at

5

the time of the offense. The relevant portion reads as follows:

"Any evidence or specimen coming into the possession of said

medical examiner in connection with any investigation or autopsy

may be retained by the medical examiner or be delivered to one of

the law enforcement officers assigned to the investigation of the

death." Fla. Stat. Ch. 406.13(1973).

9. This Court ordered a hearing on all pending motions on

December 10, 2001.

Bedore, currently employed at the Medical Examiner’s Office,

testified that he joined the office with Dr. Wood in 1984. At the

time he joined the office, there were no written evidence

procedures in place. (HR. 28). Thus, the above referenced statute

was the only guiding authority in regards to evidence or specimen

samples.

11. Bedore further testified that the Medical Examiner’s

office does not retain evidence as they don’t have an evidence

vault. (HR. 33). The Medical Examiner turns the evidence over to

the law enforcement agency investigating the case. (HR.33).

12. According to the State Attorney’s investigation, there is

no record of either a rectal swab or the vaginal washings being

turned over to the lead detective in the case, a Detective Pandakos

of the Pinellas County Sheriff’s Office. (EX. 4). The report

contains a chain of custody evidence log. (EX. 4). The log does

6

not show the presence of the vaginal washings or the rectal swab.

However, the log does show that two items have been destroyed, one

on March 25, 1988 and the other item was destroyed on August 11,

1987. (EX. 4). The log gives no indication as to what was

destroyed on those dates, simply that a destruction was done.

There is no further documentation by the Sheriff’s Office showing

what was destroyed.

13. Evidence and property procedures of the Pinellas County

Sheriff’s Office were in effect for the time periods of the

destruction listed. (EX. 7). The procedures state that: Final

disposition of property will require written permission (Form #226,

titled Property Release Receipt/Disposition Order) from the case

agent or a supervisor. A Court order can also serve as written

permission. Under exigent circumstances, a verbal final release

will be accepted from a supervisor; however, written permission

must be forwarded to the Evidence Control and Property Unit within

three (3) days of release. There is not evidence of a Form #226

being executed in this case. (EX. 7).

14. All other items of evidence to wit: vials of blood, a

bloody nightgown, fingernail scrapings, knives, ambulance paper

sheet, slides from the FBI, plucked pubic hairs etc. have been

examined or otherwise accounted for by CCRC-Middle investigators.

The only other piece of evidence not accounted for is a one dollar

bill found at the scene of the murder. The one dollar bill can be

7

tracked as being sent to the FBI lab for analysis in 1977, but

never returning to the Sheriff’s Office with the other evidence.

(See EX. 8). Furthermore, a search of the archives has been done

and no Property Release Receipt/Disposition Order or Court order

exists for the two items listed as destroyed on March 25, 1988, and

August 11, 1987. (See EX. 9).

Evidence was destroyed in this case which could have been

tested for DNA. The lower court has ruled that Dr. Wood, the

assistant medical examiner who performed the autopsy on victim

Natalie Brady, destroyed vaginal washings and a rectal swab taken

from the body of Natalie Brady between 1977-1979. Under the

controlling statute at the time, Wood was permitted to keep the

specimens or turn it over to law enforcement. Wood showed a

complete and reckless disregard for the law governing the

destruction of evidence. Furthermore, Wood demonstrated a reckless

disregard for the common sense assessments of evidence reasonably

expected of a medical examiner. She was a critical part of the

case, she knew how important this vaginal wash was, yet she

destroyed the wash during the pendency of Mr. King’s direct appeal.

Trial counsel was ineffective for not moving for an

independent testing of the vaginal wash or to challenge the

8

findings of Dr. Wood. The lab report dated March 17, 1977,

indicated the vaginal wash was "grossly hemologized, very bloody,

clotted and difficult to read". This wash was the only evidence

linking a type A secretor to the crime. Had trial counsel

challenged the results of the blood type test, the State would have

been unable to place a type A secretor at the crime. The outcome

of the guilt phase of the trial would have been different.

Trial counsel was ineffective for not questioning potential

jurors on their ties to law enforcement. In a 1996 newspaper

article, juror Demuth admitted she was the daughter of a police

officer. This was never covered in voir dire at trial. Seating a

biased juror resulted in an unreliable verdict at both the guilt

and penalty phases of the trial.

Mr. King is actually innocent of the crime and the death

penalty. Circumstantial evidence in the case was meager, and the

evidence destroyed which could have exonerated him. Had the

evidence been available for testing, results would have shown that

Mr. King is actually innocent of the murder of Ms. Brady and the

statutory aggravators would not have been proven. Thus, Mr. King

is also innocent of the death penalty.

Due process requires that claims which should have been raised

9

in Mr. King’s original Motion for Post-conviction Relief be heard

at this time. The effect of a procedural bar is to deny Mr. King

due process because of the ineffective assistance of postconviction

counsel. Because the State of Florida has precluded

appellate counsel from raising ineffective assistance of counsel

claims on direct appeal, and found that no right exists to

effective assistance of post-conviction counsel, Mr. King has been

denied his rights pursuant to the United States Constitution.

The Florida Death Penalty sentencing scheme is

unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466

120 S.Ct. 2348, 2355 (2000).

Execution by lethal injections constitutes cruel and unusual

punishment prohibited by the United States Constitution.

The trial court engaged in ex-parte communication with the

prosecutor during which the prosecutor asked that the media be

removed from the courtroom during the testimony of certain state

witnesses. The prosecutor told the judge that the witnesses would

not testify unless there were no media present. The judge then

ordered the media not to photograph those witness, giving the state

witnesses special treatment in violation of Mr. King’s rights as

guaranteed by the United States Constitution.

10

Under the principles set forth by this Court in Stephens v.

State , 748 So.2d 1028 (Fla. 1999), this claim is a mixed question

of law and fact requiring de-novo review with deference only to the

factual findings by the lower court.

In Arizona v Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988),

the Court set a minimum standard regarding the destruction of

possible exculpatory evidence. The facts reported in Youngblood

are as follows: at trial, expert witnesses testified that the

defendant might have been completely exonerated by a timely

performance of a test on properly preserved semen samples. A rape

kit was used, however this was evidence that sexual activity had

taken place, it did not identify Youngblood as the assailant.

Clothing with semen stains on it was taken into evidence but not

refrigerated or frozen. This occurred in 1983. In 1985, the

police criminologist examined the victim’s clothing for the first

time. He found one semen stain on the victim’s underwear and

another on the rear of his T-shirt. The criminologist tried to

obtain blood group substances from both stains using the ABO

technique, but was unsuccessful. He also performed a P-30 protein

11

molecule test on the stains, which indicated that only a small

quantity of semen was present on the clothing; it was inconclusive

as to the assailant’s identity. The Tucson Police Department had

just begun using this test, which was then used in slightly more

than half of the crime laboratories in the country. Because the

clothing was not properly preserved, it could not exonerate the

defendant. The Youngblood Court held:

We therefore hold that unless a criminal

defendant can show bad faith on the part of

the police, failure to preserve potentially

useful evidence does not constitute a denial

of due process of law.

Id. at 58.

In the case at bar, the circuit court ruled, "That the vaginal

wash and the rectal swab were not available for testing because

they were destroyed by someone in the medical examiner’s office;

either immediately after they were tested, or within one to two

years after they were taken, as was customary in all cases in all

cases where such specimens were obtained and tested in house, as

was done in this case." (Order Denying Defendant’s Motion to

January 1, 2002, pg. 11). Such a conclusion in not valid based on

the testimony received in this case. In making its ruling, the

court relied upon the testimony of one Larry Bedore, an employee

with the Medical Examiner’s Office since 1984. (HR.44). Bedore

testified that toxicology testing logs were only begun about four

12

or five years prior to the 2001 hearing date. Logs prior to that

time did not exist. (HR.43). Thus, Bedore could not testify based

upon any documentation regarding the missing evidence. Bedore

testified that procedures for the keeping and destroying evidence

were looser in 1977, nor did they have written evidence procedures

in 1977 or in 1984. (HR.28). Although Bedore was not employed at

the time in question, he testified that once serology tests were

done, the fluid and test tube were discarded by Dr. Wood. (HR.31).

Considering that Mr. Bedore was not even employed with the Medical

Examiner’s Office at the time of the testing of the vaginal fluids,

such a conclusion is erroneous and not supported by competent

evidence. Dr. Wood is arguably the only person who would know what

happened to the missing evidence, and she has been found

Defendant’s Motion to Take Deposition of Dr. Joan Wood, signed by

Judge Susan F. Shaeffer on December 14, 2001).

Assuming Dr. Wood discarded the evidence, she was in direct

violation of Section 406.13, Florida Statutes (1977). This was the

only authority at the time which covered the handling of evidence

by medical examiners. The law was clear and unambiguous on this

point: Dr. Wood could have kept the evidence or turned it over to

law enforcement and then law enforcement could have destroyed it

pursuant to their procedures. Fla. Stat ch. 406.13 (1977).

Bedore further testified that upon being contacted by a State

13

Attorney investigator, to the best of his knowledge, the Medical

Examiner’s office did not have the evidence for two reasons.

First, his conjecture of what Dr. Wood used to do, to wit: throw

out samples after testing regardless of the law on a routine basis.

Second, the Medical Examiner’s Office, "do[esn’t] retain evidence.

We turn the evidence over to the law enforcement agency

investigating the case. So per se, we don’t have an evidence

vault. We don’t retain things of testable nature that either the

FBI in those days or FDLE today would be doing." (HR.33). His

reasoning is faulty because he was not present and cannot know what

Dr. Wood did in 1977, and he cannot know what the retention policy

was in 1977. He was not there.

The fact that this evidence was potentially exculpatory is

demonstrated by the Laboratory Report Form dated March 18, 1977.

(Ex. 4). Under the test results for the vaginal wash are hand

written notes stating "Vag wash very bloody grossly hemolyzed very

difficult to read" with the handwritten initials, "MH" and a

partially illegible 1977 date. Upon reading these notes, Wood was

on notice that this may be an unreliable reading, and this sample

may have to be tested again before trial. The test revealed the

presence of a type A secretor mixed in with Ms. Brady’s blood, type

O. It was the only evidence linking Mr. King to the murder and

rape of Ms. Brady. Since Mr. King was a type A secretor, it was

critical for the State to place a type A secretor at the crime

14

scene. Based upon the handwritten notes, the probability of an

inconclusive reading or even a different blood type obtained upon

retesting, was great. If trial counsel had exploited the obvious

difficulty that the sample was "grossly hemolyzed, very bloody,

difficult to read" by independent testing, the presumption that a

type A secretor raped and killed Ms. Brady would have been

successfully rebutted. Since Mr. King was a type A secretor, the

only evidence linking a type A secretor to the crime would have

been vitiated. The likelihood that a motion for Judgement of

Acquittal would have been granted is great or in the alternative,

the jury would have returned a verdict of not guilty.

In State’s Response to Successive Motion to Vacate Judgement

and Sentence, Request for Evidentiary Hearing, and Application for

Stay of Execution cites to, United States v. Vera, CR No. 00-309-

BR,2001, which quotes the trial court in the Huff hearing regarding

the destruction of evidence claim, "In this case there was no

obvious exculpatory value to this evidence apparent to Deputy

Oxford, or to the government generally, when it was destroyed."

(HUFF.83). In the case at bar, Mr. King contends that this vaginal

wash and rectal swab had not only apparent exculpatory value, but

rather obvious value, and that Dr. Wood, as a trained medical

examiner, had knowledge of the value of this evidence.

In State’s Response, counsel for the state also relies on

Kelley v State, 569 So. 2d 754 (Fla. 1990). In Kelley the court

15

held:

"Kelley first argues that the state’s

destruction of material evidence prior to his

trial deprived him of his constitutional

rights. In the prior appeal, this Court

explained that because the case involving

Maxcy’s death had been closed for many years,

the state obtained an order permitting the

destruction of evidence. Several years later,

the state initiated the prosecution of Kelley

when new evidence came to light. This Court

concluded that the state had not been

negligent in causing the destruction of

evidence and further held that the destruction

of the evidence in question did not prejudice

Kelley’s case."

In the case at bar, no court order was obtained authorizing

the destruction of this evidence. In fact, the statute outlining

procedures was not followed. The act of the destruction of the

vaginal wash and rectal swab by Dr. Wood, when she was forbidden by

law from destroying the wash and swab, demonstrate a blatant

disregard for the statute, the only procedure in effect regarding

evidence held by the Medical Examiner.

Counsel also relied upon in State’s Response, United States v

Deaner, 1 F.3d 192 200,201 (3d Cir. 1993). Deaner was a case

involving a guilty plea where the actual physical weight of the

contraband seized was at issue in regards to Federal Sentencing

Guidelines offense levels. Due to the sheer bulk of the evidence

it was destroyed after it was weighed.

The Deaner Court held:

16

Finally, section 50.21(e)(4) provides that "a

representative sample" of marijuana "shall be

retained." It is undisputed that this was not

done in the present case. The district court

nevertheless decided that the evidence

indicating that the marijuana weighed 23.9

kilograms was "more than sufficient for the

purpose of sentencing as corroborated by the

photographs of the plants..., by the

certificate with respect to the scale that was

used, and from the laboratory report that that

was the weight found." App. At 174. The court

concluded that although the regulations

were"not precisely followed by not maintaining

a representative marijuana sample, it really

does not prejudice the defendant in this

The fact that the government did not retain a

representative sample does not affect the

conclusion that the DEA complied substantially

with the procedure set forth in section 50.21

for destruction of contraband evidence. Deaner

does not challenge the government’s

explanation that the marijuana was destroyed

because it was deteriorating and taking up

limited space. At most, the government was

negligent in failing to preserve a

U.S. at 58, 109 S.Ct. At 337-38 (failure of

police to refrigerate clothing and perform

test on semen samples was at worst negligent).

Deaner proffers no other evidence that would

preclude admission of otherwise reliable

evidence on the weight of the marijuana seized

from his home. We therefore conclude that

this record does not show bad faith on the

part of the government.

Id. at 200,201.

In the case at bar, the evidence that was destroyed consisted

of one test tube and one rectal swab, very small pieces of

evidence. There is no argument by the State that the evidence was

destroyed because it was deteriorating and taking up limited space.

17

In fact, the evidence still preserved in this case consists of

jackets, knives, nightgowns, fingernail scrapings, test tubes

filled with blood, hair samples, etc. Thus, the State failed to

preserve the most important physical evidence in the case, while

keeping that which cannot serve to exonerate Mr. King. Because the

destroyed evidence was the only evidence linking a type A secretor

to the crime, the destruction of this small piece of evidence,

while preserving other evidence which takes up much more space is

suspect.

Mr. King contends that Dr. Wood was not permitted by law to

destroy the evidence, she acted in a manner which was contrary to

the statute in effect at the time. Dr. Wood also acted contrary to

the common sense assessments of evidence reasonably to be expected

of a trained assistant medical examiner or she was so unmindful of

both as to constitute the reckless disregard of both.

Cir. 1994). The Holdren court held:

Without deciding whether the physicians were

agents of the prosecution, we are of opinion

that even if they were agents, they did not

act in bad faith by failing to preserve the

semen samples in such a state that they later

could be subjected to further scientific

analysis. First, the physicians followed

standard procedures in collecting, analyzing,

and disposing of the semen. Second, at the

time that the physicians disposed of the

remaining semen, they did not know of any

exculpatory value of the semen because the

semen had not been tested for a blood grouping

analysis. That test, indeed, was not one

18

performed at the Medical Center.

Id. at 60.

Holdren can be distinguished from the case at bar by the fact

that Dr. Wood was a medical examiner, not an employee of a local

medical center. Dr. Wood was aware of the exculpatory value of the

vaginal wash because the vaginal wash had been tested for blood

grouping analysis and was found to be very difficult to read among

other problems with the wash sample. Dr. Wood did not follow the

statutory procedure in disposing of the vaginal wash in that she

was not permitted to destroy it. Mr. King contends that clearly,

Dr. Wood acted in bad faith when she destroyed the vaginal wash.

The State, in their Response, next relies on Rogers v. State,

511 So.2d 526, 531 (Fla. 1987)(defendant’s burden of establishing

actual prejudice from pre-indictment delay is not met by

speculative allegations of faded memories or the disappearance of

purported alibi witnesses); The Rogers court held:

When a defendant asserts a due process

violation based on pre-indictment delay, he

bears the initial burden of showing actual

prejudice. Rogers has not met this burden

through the speculative allegations made here

of faded memories or the purported

disappearance of alibi witnesses whose

significance or existence was doubtful.

Id. at 531.

In the case at bar, the only evidence which ties Mr. King to

Ms. Brady are the vaginal wash. No alibi witnesses were called and

there were no allegations made of faded memories. The potential

19

deficiencies or problems with the original and only test of the

vaginal wash is clearly noted on the Laboratory Report Form dated

March 18, 1977.

The State argues that Mr. King should be denied relief on the

basis of laches. This argument is not valid because Mr. King moved

for DNA testing pursuant to Section 925.11(1), Florida Statutes

(2002), a statute effective October 1, 2001, for making claims for

DNA testing. King is well within the time period for making such

claims, as the cutoff date for raising a DNA claim is October 1,

2003. The trial court found that the evidence was destroyed. To

deny Mr. King relief based on laches on this issue by simply

stating that the evidence was destroyed, without litigating the

issues surrounding its destruction is tantamount to giving the

State license to destroy evidence whenever that evidence can be

used to exonerate a defendant. Mr. King has always maintained his

innocence of the rape and murder of Ms. Brady. Placing a type A

secretor at the crime scene was essential to the prosecution since

there were no eyewitnesses. He clearly falls under the new statute

allowing for a testing of DNA evidence at this time.

This questionable blood sample was known to be "very difficult

to read" by an experienced medical examiner. Trial counsel was

ineffective for not testing the blood sample before trial. Postconviction

counsel was ineffective for not raising this issue in

post-conviction proceedings. This is a capital case, not a DUI

20

case, if Dr. Wood had destroyed this sample between 1977 and 1980,

Mr. King’s direct appeal had not even been decided. King v State,

390 So 2d 315 (Fla. 1980). Dr. Wood had provided the key piece of

evidence needed to convict Mr. King. As a trained medical examiner

and an agent of the State, it can be safely presumed that she was

familiar with capital cases. When Dr. Wood destroyed the vaginal

wash and rectal swab, she acted in a manner which was contrary to

statute and she demonstrated a complete lack of the common sense

assessments of evidence reasonably to be expected of an experienced

medical examiner. Mr. King’s case was not even affirmed on direct

appeal at the time of the destruction. Mr. King contends that

there is a showing of objective bad faith sufficient to establish

the bad faith requirement of the Trombetta/Youngblood test.

In the case attached to State’s response, United States v.

Vera, CR No. 00-309-BR United States District Court for the

District of Oregon 2001 U.S. Dist. Lexis 9337 June 26, 2001, a

deputy officer destroyed drug samples as a result of a

housecleaning of a locked trailer used to store hazardous

materials. The hazardous materials trailer was by all accounts "a

mess" and very disorganized. The deputy assumed that materials

stored on the left side of the trailer were eligible for

destruction and, contrary to department policies, destroyed the

evidence. The Vera court held:

The Court finds no evidence of actual bad

faith: Oxford had no direct connection to this

21

particular investigation, and there is no

dispute that Schwarz and King did everything

they could to ensure all evidence seized in

this case was properly preserved. While the

government is responsible for the serious

mishandling of these evidentiary samples, no

inference of bad faith is warranted on this

record.

Id. at 14.

In the case at bar, Dr. Wood had a critical connection to the

investigation, she was the medical examiner, not a deputy who knew

nothing about the investigation. Wood obtained the vaginal wash

from the corpse of Ms. Brady and testified regarding this evidence

at trial. She knew how important this vaginal wash was. Wood also

knew that this vaginal wash was difficult to test, and presumably,

that the test results were subject to attack by effective trial

counsel. Mr. King contends that due to Wood’s position as an

Assistant Medical Examiner and her crucial role in the

investigation of the death of Ms. Brady, Vera does not apply to

this case.

In United States v Elliott, 83 F.Supp. 2d 637 (E.D. Va. 1999),

the court set a standard for objective bad faith.

The District Court in Elliott held:

Where, as here, there is no evidence of an

established practice which was relied upon to

effectuate the destruction, where the

applicable documents teach that destruction

should not have occurred, and where the law

enforcement officer acted in a manner which

was either contrary to applicable policies and

the common sense assessments of evidence

reasonably to be expected of law enforcement

22

officers or was so unmindful of both as to

constitute the reckless disregard of both,

there is a showing of objective bad faith

sufficient to establish the bad faith

Id. at 647-648.

In the case at bar, the only established practice which was

relied upon by the Medical Examiner’s Office in regards to evidence

in 1977 was the governing statute. The law stated that the Medical

Examiner could either keep the specimen or turn it over to law

enforcement. The trial court found that Dr. Wood did neither. She

destroyed it. The applicable statute did not state that

destruction should have occurred. Dr. Wood was bound by law to

keep the vaginal wash and rectal swab, yet she failed to follow the

law. Dr. Wood also acted in a manner that was contrary to

applicable policies and also to the common sense assessments of

evidence reasonably expected of a trained medical examiner, an

agent of the State. Dr. Wood showed a reckless disregard for the

applicable policies and the common sense assessments. Mr. King

contends that the necessary showing of objective bad faith

sufficient to establish the bad faith requirement of the

Trombetta/Youngblood test has been demonstrated.

In Stuart v State, 907 P.2d 783 (Id. 1995). The Supreme Court

of Idaho was faced with a similar situation in regards to the

of a post-conviction action. Stuart had raised the claim that the

23

calls between Stuart and his attorney were monitored by jail

authorities. Logs were obtained and revealed that other inmates’

calls had been taped by order of the Sheriff. The jail phone log

book, after examination for the time which the defendant complained

his calls were taped, revealed that portions of the log book

pertaining to Stuart’s calls had been torn or cut from the log

book. The Stuart Court reasoned that there was no evidence in the

record that anyone outside of the Sheriff’s Office, such as the

former employees, had any reason to destroy the evidence in such a

manner. There was evidence that the log had been kept in a locked

vault and was not obtainable by the general public or other

employees.

The Court held on page 793:

As discussed in the previous section, the

district court’s finding that the intentional

destruction of evidence was not attributable

to the state was unsupported by substantial

and competent evidence. Accordingly, having

reversed that finding as clearly erroneous,

such determination constitutes an independent

and adequate basis apart from the discovery

violation for a finding of bad faith under

consequences of this constitutional violation.

The district court in this case

acknowledged that if the destruction of

evidence was attributable to the state, the

spoliation doctrine would apply in Stuart’s

favor. The spoliation doctrine is a general

24

principle of civil litigation which provides

that upon a showing of intentional destruction

of evidence by an opposing party, an inference

arises that the missing evidence was adverse

to the party’s position. See McCormick On

In a criminal case, application of a favorable

inference under the spoliation doctrine is the

appropriate remedy for a Youngblood due

process violation.

In the case at bar, the evidence was destroyed. It was not,

as in Youngblood, improperly preserved. This evidence was in the

control of Dr. Wood and then was discarded. Pursuant to the case

cited above, Mr. King contends that application of a favorable

inference under the spoliation doctrine is the appropriate remedy

for a Youngblood due process violation and the sentence of death

should be vacated.

Pursuant to recent investigation, the evidence of the vaginal

washings of the victim have been ruled unavailable for testing.

Assuming trial counsel was provided with the report of the medical

examiner, he was ineffective in not moving for an independent test

of the vaginal washings at the time of trial. It is clear that

25

there were grounds for an independent test when the medical

examiner’s notes indicate that the vaginal washings were "very

bloody, grossly hemologized very difficult to read." (EX. 4).

Counsel was further ineffective in not moving to suppress the

vaginal washings on the ground that the evidence was unavailable

for independent testing. This was the only evidence which connects

the Defendant with the rape and murder on Ms. Brady. Given the

damning effect of such testimony linking him to Ms. Brady, the

failure to make sufficient inquiry regarding the test performed

constituted an unreasonable and deficient performance of counsel.

Because the identification is by blood type only, an inconclusive

result from an independent test would have raised a reasonable

doubt as to whether a type A secretor was involved in the rape and

murder of Ms. Brady. Trial counsel was ineffective for not doing

this test, for not locating the evidence, and because of his

ineffective actions, Mr. King’s case was prejudiced. The outcome

of the guilt phase would have been different had the State been

unable to place a type A secretor at the scene. Strickland v

Washington, 466 U.S. 668 (1984).

In Peede v State, 748 So.2d 253 (Fla. 1999) this Court

addressed the issue of post-conviction claims and the procedural

bar. The Court held in Peede:

Because the new claims raised in the amended

motion were not addressed specifically in his

order, we assume that the trial judge found

these issues procedurally barred or improperly

26

pled when he wrote in his initial order that

"the remaining claims are either procedurally

barred or improperly pled.

Id. at 254.

In the case at bar, the trial court ruled this claim to be

procedurally barred. This Court stated in a footnote in Peede:

FN5. We are also constrained to comment on the

representation afforded Peede in these

proceedings. Peede’s brief on appeal raised

nine issues, but was only 24 pages in length.

While we are cognizant that quantity does not

reflect quality, the majority of the issues

raised were conclusory in nature had made it

very difficult and burdensome for this Court

to conduct a meaningful review. In all of his

postconviction proceedings, Peede has been

represented by Capital Collateral

Representative (CCR) and Capital Collateral

Regional Council -Middle District(CCRC). His

initial and amended 3.850 motions were filed

by CCR attorneys in the Tallahassee office and

his brief on appeal was filed by an attorney

in the CCRC Tampa office. His reply brief was

actually filed "pro se" with the help of a

separate ghost attorney. In many respects,

this brief was more helpful and comprehensive

than the initial brief filed. In addition to

the poor quality of the initial brief, this

Court has received several complaints

concerning counsel’s representation, including

complaints by Peede himself. We note that in

this past legislative session, the legislature

amended section 27.710, Florida Statutes

(Supp. 1998) by adding subsection (12) which

states: "The court shall monitor the

performance of assigned counsel to ensure that

the capital defendant is receiving quality

representation."

Id. at 25.

In the case at bar, Mr. King was not represented by CCR or

CCRC-Middle, but rather by a court-appointed private attorney who

27

filed a nineteen page 3.850 motion, twelve pages of which were

procedural history and a certificate of service. (PC-R. 61,406 pg.

7-24). His performance was never monitored by any court.

Furthermore, recent orders by this Court regarding pending

cases,(See attached orders for Happ and Fotopoulos) cites Peede,

and state that although the Court condemns the practice, in an

attempt to properly administer justice, and recognizing the

legislature’s call for judicial oversight of collateral counsel,

the Court dismissed the cases without prejudice for the purpose of

allowing appellant to further amend his underlying motion brought

pursuant to Florida Rule of Criminal Procedure 3.850. Mr. King

contends that if this Court is willing to dismiss cases without

prejudice for the purpose of allowing appellant to further amend

his underlying motion, in the interest of justice, a defendant

consideration by this Court. In the interest of justice, this claim

should not be deemed procedurally barred.

28

On July 6, 1996, an article was published in the St.

Petersburg Times newspaper regarding Mr. King’s case. (EX. 10).

Within the article an interview of one juror, Donna Lee Demuth.

The interview states that Mrs. Demuth was the daughter of a police

officer in Chicago. She states, "I was just a sheltered housewife.

I had never dealt with anyone like King." During trial the voir

dire questions asked of Mrs. Demuth by the prosecutor included

whether anyone in her immediate family has ever been involved in

the court process. (R. 1240). Mrs. Demuth replied, "No, sir."

(R. 1240). Defense counsel for Mr. King performed only a

perfunctory voir dire. He failed to inquire about possible law

enforcement relationships despite the fact that several law

enforcement officers were going to testify in the trial. Counsel

never inquired of juror Demuth whether she was related to anyone

involved in law enforcement. (R. 1242-44). Given her statements

contained in the 1996 interview, it is clear that Mrs. Demuth was

related to a person within her immediate family who had been

involved in the court process. Thus, juror Demuth’s answer was

misleading.

"When it is known that law enforcement officers may testify,

veniremen should be questioned to determine whether there is any

predisposition to give greater weight to the testimony of law

2000)quoting Smith v. State, 699 So.2d 629, 636 (Fla. 1997). The

29

failure of counsel to uncover this information, resulted in the

placement of at least one juror on the panel who probably had bias

against Mr. King. As a result of counsel’s error, Mr. King had

jurors placed on his case with probable bias and the verdict is

unreliable.

Counsel relies on the Peede and the Happ and Fotopoulos

Supreme Court orders in addition to argument presented in Issue II

as this argument is applicable to this issue.

The Court should vacate the judgement and sentence of death

based on the destruction of physical evidence. If the Court does

not do so, however, the Court should at least presume that the

destroyed evidence would have been adverse to the State and

favorable to Mr. King. This presumption is only fair, because the

State’s destruction of the evidence deprived Mr. King of the right

to an examination and testing of the evidence by post-conviction

counsel. If the evidence had been subjected to DNA testing it

would have exonerated Mr. King. The State should bear the burden

of its unlawful evidence destruction, not Amos King. Now that the

evidence destruction has precluded Mr. King from proving his

30

innocence in any forum, this Court should recognize that it is the

most appropriate forum for applying the judicial doctrine of

spoliation, and should grant effective relief. The evidence

produced at trial against Mr. King was almost entirely

circumstantial. There were no eyewitnesses to the murder and the

only physical evidence connecting Mr. King to the crime was the

presence of type A secretor blood found in the vaginal washings of

the victim; the presence of which is not conclusive to identify Mr.

King as the perpetrator. The claims herein raised should now be

considered in light of the destruction of evidence, the vaginal

washings, by the State in light of the weak factual circumstances

surrounding Mr. King’s conviction. Mr. King asserts his innocence

of the death penalty in this successive petition. In light of his

actual innocence, the ends of justice require this successive

petition be heard on the merits. The failure of a federal court to

reach a procedurally defaulted claim creates a fundamental

miscarriage of justice when the petitioner is actually innocent of

the crime charged, Murray v. Carrier, 477 U.S. 478,496 (1986), or

actually innocent of the death penalty. Sawyer v. Whitley, 505

U.S. 333, 339-342 (1992). Specifically, as to issued dealing with

actual innocence of the crime charged, the court must determine in

light of all the evidence, including new evidence, whether "it is

more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt." Schllup v. Delo, 115

31

S.Ct. 851, 867, 868 n.47(1995).

In determining innocence of the death penalty in a weighing

state, like Florida, the court must balance the mitigating evidence

against the aggravating evidence to determine if a reasonable

1447, 1453(E.D. Ark. 1994). DNA testing also would have exonerated

Mr. King from the aggravating underlying felonies. The first

paragraphs of Mr. King’s petition make evident the point relevant

here: both the conviction and the death sentence constitute

miscarriages of justice. Guilt of the crimes has always been

denied and the State’s case has been almost entirely

circumstantial.

The above issue has been filed in order to preserve the issue

herein for further review to address substantial issues of error

under the Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution. Pursuant to the suggestion by this

Court in Sireci v State, 773 So. 2d 34,41 N.14 (Fla. 2000), this

statement is included to alert the Court of the necessity of

presenting this issue in this manner.

32

On May 14, 1981, attorney Baya Harrison was appointed by Judge

Andrews of the Circuit Court to represent Amos King for purposes of

his clemency proceedings, state habeas, and 3.850 motion

proceedings. (PC-R. 61,406 pg. 6). On October 2, 1981, Attorney

Harrison filed a nineteen-page 3.850 motion, twelve pages of which

were procedural history and a certificate of service. (PC-R.

61,406 pg. 7-26). Attorney Harrison raised four issues in his

3.850 motion. Mr. Harrison did not file a State Petition for

Habeas Corpus at all. On November 8, 1981, Attorney Harrison filed

a Motion to Continue the evidentiary hearing set in Mr. King’s case

stating that he had not fully investigated witnesses, nor retained

any necessary experts. (PC-R. 61,406 pg. 28-30). The Motion for

Continuance was denied by Judge Andrews. (PC-R. 61,406 pg.115).

Mr. Harrison failed to raise multiple claims regarding the

claims have either been raised and found to be procedurally barred,

33

or not raised at all due to the procedural bar. Thus, Mr. King was

denied access to the court by the appointment of an ineffective

post-conviction attorney.

The United States Supreme Court has held in Pennsylvania v.

Finley, 481 U.S. 551, 551 (1987), that prisoners do not have a

constitutional right to counsel in post conviction proceedings.

However, as is made clear by the dissent in Coleman v. Thompson,

501 U.S. 722 (1991):

"This Court has made clear that the Fourteenth

Amendment obligates a State "‘to assure the

indigent defendant an adequate opportunity to

resent his claims fairly in the context of the

State’s appellate process,’" Pennsylvania v.

Finley, 481 U.S. 551,556 (1987), quoting Ross

v. Moffitt, 417 U.S. 600,616 (1974), and

require[s] unreasoned distinctions." Id. at

612. While the State may have wide latitude

to structure its appellate process as it deems

most effective, it cannot, consistent with the

Fourteenth Amendment, structure it in such a

way as to deny indigent defendants meaningful

access. Accordingly, if a State desires to

remove from the process a of direct appellate

review a claim or category of claims, the

Fourteenth Amendment binds the State to ensure

that the defendant has effective assistance of

counsel for the entirety of the procedure

where the removed claims may be raised.

Similarly, fundamental fairness dictates that

the State, having removed certain claims from

the process of direct review, bear the burden

of ineffective assistance of counsel in the

proceeding to which the claim has been

removed.

Id. at 773-774.

Thus, by enacting Rule 3.850, Florida Rules of Criminal

Procedure, the State of Florida has created a forum, separate from

34

direct appeal, in which to address ineffective assistance of trial

counsel claims. By separating those claims from direct appeal, the

State must now bear the burden of ineffective assistance of postconviction

counsel claims. To deny Mr. King effective assistance

of post conviction counsel is to deny him the forum in which to

raise his claims in contravention of the Sixth and Fourteenth

Amendments to the United States Constitution and the corresponding

provisions of the Constitution of the State of Florida.

In the Response, the State relies on Lambrix v State, 698 So.

2d 247 (Fla. 1996). In Williams v State, 777 So. 2d 947 (Fla.

2000) The Court held:

2d 892, 896 (Fla. 1964),and reiterated in

to the more flexible standards of due process

announced in the Fifth Amendment, Constitution

of the United States."

Id. at 950.

In the case at bar, Harrison was clearly ineffective. Claims

which should have been raised were ignored. Mr. King had been

denied due process. Counsel relies on the Peede and the Happ and

Fotopoulos Supreme Court orders in addition to argument presented

in Issue II as this argument is applicable to this issue.

35

Notwithstanding this Court’s decision in Mills v. Moore, 786

So.2d 532 (Fla. 2001), Mr. King respectfully submits that

considerations of Due Process require that the jury unanimously

find the existence of each statutory aggravating factor before it

may be used to impose the death penalty.

In Jones v. United States, the United States Supreme Court

held, "under the Due Process Clause of the Fifth Amendment and the

notice and jury guarantees of the Sixth Amendment, any fact (other

than prior conviction) that increases the maximum penalty for a

crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt." Jones v. United States, 526

U.S. 227, 243, n.6 (1999). Subsequently, in Apprendi v. New

Jersey, the Court held that the Fourteenth Amendment affords

citizens the same protections under state law. Apprendi v. New

Jersey, 530 U.S. 466 120 S.Ct. 2348, 2355 (2000).

In Apprendi, the issue was whether a New Jersey hate crime

sentencing enhancement, which increased the punishment beyond the

statutory maximum, operated as an element of an offense so as to

require a jury determination beyond a reasonable doubt. Apprendi,

120 S.Ct. at 2365. "[T]he relevant inquiry here is not one of

36

form, but of effect-does the required finding expose the defendant

to a greater punishment than that authorized by the jury’s guilty

verdict?" Apprendi, 120 S.Ct. at 2365. Applying this test, it is

clear that aggravators under the Florida death penalty sentencing

scheme are elements of the offense which must be charged in an

indictment, submitted to a jury during guilt phase, and proven

beyond a reasonable doubt by a unanimous verdict. Because the

effect of finding an aggravator exposes the defendant to a greater

punishment than that authorized by the jury’s guilty verdict, the

aggravator must be charged in the indictment, submitted to a jury,

and proven beyond a reasonable doubt. Apprendi, at 2365. This did

not occur in Amos King’s case. Thus, the Florida death penalty

scheme is unconstitutional as applied.

The above issue has been filed in order to preserve the issue

therein for further review to address substantial issues of error

under the Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution. Pursuant to the suggestion by this

Court in Sireci v State, 773 So. 2d 34,41 N.14 (Fla. 2000), this

statement is included to alert the Court of the necessity of

presenting this issue in this manner.

37

The Eighth Amendment "proscribes more than physically

barbarous punishments." Estelle v. Gamble, 429 U.S. 97, 102 (1976).

and wanton infliction of pain," or "torture or a lingering death,"

Gregg v. Georgia, 428 U.S. 153, 173 (1976); Louisiana ex. rel.

Francis v. Resweber, 329 U.S. 459 (1947). "Among the ‘unnecessary

and wanton’ inflictions of pain are those that are ‘totally without

penological justification.’" Rhodes v. Chapman, 452 U.S. 337, 346

103).

The procedures employed by the Department of Corrections of

the State of Florida in regard to lethal injection include

operation behind closed doors where no witnesses are allowed to

view the preparation of an inmate prior to lethal injection. The

preparation of the inmate for lethal injection could include

numerous cuts for placement of the intravenous lines. Such

procedure, if conducted upon Mr. King, would constitute cruel and

unusual punishment prohibited by the Eighth Amendment of the United

States Constitution and the corresponding provisions of the

38

Constitution of the State of Florida.

The above issue has been filed in order to preserve the issue

therein for further review to address substantial issues of error

under the Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution. Pursuant to the suggestion by this

Court in Sireci v State, 773 So. 2d 34,41 N.14 (Fla. 2000), this

statement is included to alert the Court of the necessity of

presenting this issue in this manner.

Mr. King’s trial was the first in which the media was allowed

to photograph the proceedings. When Mr. King’s counsel was not

present in the courtroom, the state approached the court for an exparte

communication. After the state conferred with the trial

court, the trial court spoke with the court bailiff, and the cameras

were removed from the courtroom. (Ex. 13) In a letter to the

Florida Supreme Court, the trial court stated that certain state

witnesses refused to testify unless the cameras were removed from

the courtroom. In order to appease the state witnesses and ensure

39

their favorable testimony, the state and the trial court moved, exparte,

to remove the cameras from the court. (Ex. 13)

The state and trial court’s ex-parte communications violated

Mr. King’s fundamental due process rights to a fair trial and his

between the judiciary and single litigants violate constitutional

requirements. In Rose v. State, 601 So.2d 1181 (Fla. 1992), this

Court wrote:

Noting is more dangerous and destructive of

the impartiality of the judiciary than a onesided

communication between a judge and a

single litigant.. . . The other party should

not have to bear the risk of factual

oversights or inadvertent negative impressions

that might easily be corrected by the chance

to present counter arguments...

Id. At 1183.

The ex-parte deal with the state witness for their testimony

also violated Mr. King’s due process rights under Giglio v. United

514 U.S. 419, 115 S.Ct. 1555 (U.S. 1995); Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194 (1963).

In the Response, the State relies on Lambrix v State, 698 So. 2d

247 (Fla. 1996). However, the holding in Lambrix was abrogated

in Williams v State, 777 So. 2d 947 (Fla. 2000). The Court held:

2d 892, 896 (Fla. 1964),and reiterated in

to the more flexible standards of due process

announced in the Fifth Amendment, Constitution

40

of the United States."

Id. at 950.

In the case at bar, Harrison was clearly ineffective. Claims

which should have been raised were ignored. Mr. King has been

denied due process. Counsel relies on the Peede and the Happ and

Fotopoulos Supreme Court orders in addition to argument presented

in Issue II as this argument is applicable to this issue.

Based upon the testimony at trial, the testimony of the

attached to the State response to Defense motion for DNA testing,

affidavits submitted to this Court, and arguments presented above,

Mr. King contends that his Fifth, Sixth, Eighth and Fourteenth

Amendment rights under the United States Constitution and his

corresponding rights under the Florida Constitution have been

violated. Mr. King requests the following relief:

1. That the Court vacate and set aside the judgments of

conviction and sentences, or in the alternative,

2. To vacate the sentence of death.

41

I HEREBY CERTIFY that a true copy of the foregoing Initial

Brief has been has been furnished by United States Mail, first

class postage prepaid, to all counsel of record on this _____ day

of January, 2002.

________________________________

Richard E. Kiley

Florida Bar No. 0558893

Assistant CCC

________________________________

April E. Haughey

Florida Bar No. 0119180

Assistant CCC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Counsel for Appellant

Copies furnished to:

Carol M. Dittmar

Assistant Attorney General

Office of the Attorney General

2002 N. Lois Avenue

Tampa, FL 33607

C. Marie King

Assistant State Attorney

Office of the State Attorney

P.O. Box 5028

Clearwater, FL 33758-5028

42

Commission on Capital Cases

ATTN: Mary Jean

402 S. Monroe Street

Tallahassee, FL 32399-1300

Susan Schwartz

Assistant General Counsel

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, FL 32399-2500

The Honorable Thomas D. Hall

Clerk, Supreme Court of Florida

ATTN: Tanya Carroll

Supreme Court Building

500 S. Duval Street

Tallahassee, FL 32399-1927

United States Court of Appeals for the

Eleventh Circuit

ATTN: Joyce Pope

56 Forsyth Street N.W.

Atlanta, GA 30303

43

I hereby certify that a true copy of the foregoing Initial

Brief, was generated in a Courier New, 12 point font, pursuant to

________________________________

Richard E. Kiley

Florida Bar No. 0558893

Assistant CCC

________________________________

April E. Haughey

Florida Bar No. 0119180

Assistant CCC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Counsel for Appellant