i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1

ISSUE I

WHETHER THE TRIAL COURT ERRED IN DENYING KING’S CLAIM THAT THE

STATE COMMITTED FUNDAMENTAL ERROR BY DESTROYING EXCULPATORY

EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . 1

CONCLUSION AND RELIEF SOUGHT . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 13

ii

Andrews v. State,

Arizona v Youngblood,

488 U.S. 51 (1988) . . . . . . . . . . . . . . . . . . 3, 7

Holdren v Legursky,

Kelley v State,

569 So. 2d 754 (Fla. 1990) . . . . . . . . . . . . . . . . 4

Rogers v State,

511 So. 2d 526 (Fla. 1987) . . . . . . . . . . . . . . . . 4

State v. Elliot,

83 F.Supp 2d 637 (E.D. Va. 1999) . . . . . . . . . . . . . 7

Stephens v. State,

748 So.2d 1028 (Fla. 1999) . . . . . . . . . . . . . . . . 1

United States v Boyd,

961 F. 2d 434,435 (3d Cir. 1992) . . . . . . . . . . . . . 4

United States v Crouch,

United States v Deaner,

1 F.3d 192 (3d Cir. 1993) . . . . . . . . . . . . . . . . 4

United States v Vera,

2001 U.S. Dist. LEXIS 9337 (D. Oregon, June 26, 2001) . . 4

Zeigler v. State,

654 So.2d 1162 (Fla. 1995) . . . . . . . . . . . . . . . . 8

1

This brief is filed on behalf of the Appellant, Amos King, in

reply to the Answer Brief of Appellee, the State of Florida.

Appellant will rely upon his arguments in the Initial Brief of

Appellant on issues II, III, IV, V, VI, VII and VIII.

The State argues that the circuit court’s factual findings

regarding the destruction of the vaginal washings of the murder

victim is supported by the testimony of Larry Bedore, an employee

of the medical examiners office today. Such an argument fails to

recognize that Mr. Bedore was not an employee of the medical

examiner’s office until seven years after Dr. Joan Wood had the

samples in her possession. In addition, there is no record or log

as to the destruction of this evidence. Thus, Mr. Bedore’s

testimony regarding what happened in that office in 1977 is pure

speculation. This speculation is the underlying basis for the

court’s decision regarding the destruction. This Court must

examine the basis for Judge Schaeffer’s decision and ensure that it

is supported by competent, substantial evidence. Stephens v.

State, 748 So.2d 1028 (Fla. 1999). An analysis of the basis of her

findings based on the testimony of a person not involved with the

2

evidence who did not even work at the medical examiner’s office

during the time period in question will find that her findings are

not supportable. Dr. Joan Wood, the person who was last in

possession of the evidence, was not interviewed by the state.

Further, a defense motion to take her deposition was denied by the

circuit court. Thus, a conclusion that she threw the evidence out

cannot be obtained.

An equally plausible scenario would be that Dr. Wood,

following the language of the only statute in place at the time,

turned the vaginal washings and the rectal swab over to a detective

at the Pinellas County Sheriff’s Office, who then destroyed the

evidence without following procedures in place regarding the

destruction of evidence. Fla. Stat. ch. 406.13 (1977). The

circuit court’s finding that such evidence was not turned over to

the Sheriff’s Office is not supported by competent, substantial

evidence. To the contrary, a review of the property record held by

the Sheriff’s Office shows that two pieces of evidence in their

possession were destroyed in 1987 and 1988. The only two pieces of

evidence not accounted for in this case are the vaginal washings

and the rectal swab taken from the victim. As shown in King’s

motion for post-conviction relief, all of the other evidence can be

traced to, or located in, the Sheriff’s Office today. There is no

Court order in evidence nor is there a Property Release

Receipt/Disposition Order to demonstrate that this evidence was

Mr. Youngblood on the basis that evidence was not destroyed in

bad faith. Arizona v Youngblood, 488 U.S. 51 (1988). However,

in August of the year 2000, after seventeen years, DNA analysis

showed that Mr. Youngblood was not the perpetrator of the crime.

Interestingly, the DNA evidence was then linked to the actual

perpetrator who was incarcerated in the State of Texas. Barbara

3

properly destroyed in accordance with policies in effect in 1987

and 1988. (EX. 9). Not one person could explain why there appear

two entries in the evidence log which show evidence was destroyed.

An employee of the Sheriff’s Office, Lieutenant Colcord,

speculates that such an entry was a "computer glitch." Colcord

further testified that there was no computer system in 1977.

(HR.84). The Lieutenant was not the person who made the entries of

the destroyed evidence in 1987 and 1988 as he was not even employed

by the office at that time. (HR.88). Such a speculation cannot be

relied upon as a basis for a factual finding that the Sheriff’s

Office did not possess and destroy the evidence in this case in

1987 and 1988.

The exculpatory value of the vaginal washings and the rectal

swab which contained evidence of the perpetrator was obvious in

1977, 1987 and 1988. However, because DNA testing became available

in 1985, the exculpatory nature of the samples was more than

evident by 1987 and 1988.

The following cases have been cited in State’s response to

Defendant’s 3.850 motion and distinguished from the case at bar in

Whitaker, DNA Frees Inmate Years After Justices Rejected Plea,

N.Y. Times, August 11, 2000.

4

(1988), Kelley v State, 569 So. 2d 754 (Fla. 1990), United States

v Deaner, 1 F.3d 192 (3d Cir. 1993), Holdren v Legursky, 16 F.3d 57

States v Vera, 2001 U.S. Dist. LEXIS 9337 (D. Oregon, June 26,

2001).

In United States v Boyd, 961 F. 2d 434,435 (3d Cir. 1992), the

Court stated:

A urine sample taken from Boyd on April 19,

1991 tested positive for cocaine metabolite.

The sample was retested, and again the results

indicated drug use. By standard procedure,

the positive urine specimen was to be

maintained by a private laboratory for two

months and then destroyed on June 28, 1991.

Id. at 435

only "standard procedure" governing the destruction of evidence by

the medical examiner in 1977 was one statue, Fla. Stat. ch. 406.13

(1977). Under this statute, Assistant Medical Examiner Joan Wood

was permitted to keep the sample or turn it over to law

enforcement. The trial court found that she did neither. She

destroyed it; Contrary to statute and contrary to the common sense

assessment of evidence reasonably expected of a trained medical

examiner.

5

Counsel for the State also relies on United States v Crouch,

The Court also noted "we need not, and could

not now, determine when and in what

circumstances actual prejudice resulting from

pre-accusation delays requires the dismissal

of the prosecution" and indicated such a

determination "will necessarily involve a

delicate judgement based on the circumstances

of each case."(citing United States v Marion,

92 S. Ct. at 466. The Court then proceeded to

reverse the order of dismissal, holding there

was no Sixth Amendment violation and that, as

to due process: "nor have appellees adequately

demonstrated that the pre-indictment delay by

the Government violated the Due Process

Clause. No actual prejudice to the conduct of

the defense is alleged or proved, and there is

no showing that the Government intentionally

delayed to gain some tactical advantage over

Ct. at 466. The opinion’s final sentence noted

that "events of the trial may demonstrate

actual prejudice, but at the present time

appellees’ due process claims are speculative

and premature."

The above case should not be applied to the case at bar in

that the case at bar has nothing to do with pre-accusation delay.

Furthermore the actual prejudice to Mr. King’s case can be

demonstrated by the lab report dated March 17, 1977. (See EX. 4).

This report states that the vaginal wash was "very bloody, grossly

hemologized very difficult to read." (EX. 4). Dr. Wood, as a

trained medical examiner, knew that the vaginal wash was subject to

attack either by trial counsel or post-conviction counsel, yet she

6

destroyed it in direct violation of statute and demonstrated a

flagrant disregard for the common sense assessment of evidence

reasonably expected of a trained medical examiner.

Counsel for the State contends that there was no reason to

believe in 1977 that the vaginal washings could be subject to any

further testing, or could provide any exculpatory value.(See Answer

Brief of Appellee p. 25). Such an argument must fail in light of

the nature of the sample and its obvious exculpatory value. Due to

the questionable nature of the vaginal wash, known through the

notations on the lab report, a prudent medical examiner would have

tested it again or at least followed the law and kept the vaginal

wash so it could be tested by another examiner. The exculpatory

value of the vaginal wash was obvious and the act of destruction

was willful.

On page 22 of Appellee’s Answer Brief, counsel argues that by

placing emphasis on the word "may" in the statute, and "shall" in

the 1981 Administrative Code, somehow Dr. Wood was authorized to

destroy the vaginal wash. The language of the statute is clear,

Wood was permitted to keep the vaginal wash or she may turn it over

to law enforcement. The statute does not state that a medical

examiner may keep it and destroy if she feels the urge to destroy

it. Mr. King contends that the discussion of the 1981 code is

irrelevant in that the trial court found that the vaginal wash was

destroyed between 1977-1979. In addition, if the medical examiner

7

had not destroyed it, and turned it over to law enforcement

pursuant to statute, the Sheriff’s Office would have had possession

of the samples in 1981. Thus, the law enforcement agency’s

destruction policies would have to be followed, not the

administrative code applying to the medical examiner. As argued

previously, the Sheriff’s Office destroyed two pieces of evidence

in 1987 and 1988 without following their own procedures.

The State cannot sufficiently distinguish State v. Elliot, 83

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

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. An attempt is made to lessen the ruling in that

case by pointing out that one jurist in Oregon "suggests" that

Elliot does not follow Youngblood. (See Answer Brief of the

Appellee p. 25). In fact, under Elliot, Mr. King is entitled to

relief. The evidence destroyed in this case meets the standard put

forth in Elliot. Given that the evidence was vitally important in

securing a conviction in an otherwise weak circumstantial case, and

given that the medical examiner knew this, the destruction of such

8

evidence by her in contravention of the statute in place at the

time constituted objective bad faith.

Counsel’s argument that Mr. King should be denied relief on

the basis of laches is an attempt to divert this Court from the

real issue at bar. As of October 1, 2001, the legislature of the

State of Florida has specifically granted prisoners the right to

have DNA testing done on any case where certain criteria are met.

Fla. Stat. ch. 925.11 (2001). Mr. King meets all of the criteria

necessary under this statute and is therefore granted a right to

have DNA tests performed on evidence at this time. To say that his

request to have DNA testing is barred ignores the Florida State

Legislature’s intention to provide testing on DNA evidence no

matter how old the case is as long as certain criteria are met

under the statute. It should be noted that nowhere in the statute

are persons denied the right for this testing because their case is

too old. Fla. Stat. ch. 925.11 (2001). Any further argument as to

the DNA testing is another attempt to divert this Court from the

issue at bar, to wit: whether the destruction of evidence which

could be used to exonerate Mr. King was done in bad faith.

The State relies on Zeigler v. State, 654 So.2d 1162 (Fla.

1995) in arguing that Mr. King’s claim for DNA testing is now

procedurally barred. In Zeigler, there was no statute available

allowing a prisoner to challenge evidence through DNA analysis.

Thus, the claim should have been raised as newly discovered

9

evidence within two years of 1988, when DNA was first recognized as

1988). That is not the case here. In Mr. King’s case there is a

statute specifically giving him an additional two years from

October 1, 2001, in which to make a DNA claim. Fla. Stat. ch.

925.11 (2001).

The State argues that Mr. King has never requested DNA

analysis prior to this date, and thus he should be barred from

raising it at this time. Again, such reasoning overlooks the plain

language of the statue providing this avenue of relief. In

addition, Mr. King asked repeatedly for any and all forms of

scientific testing from his lawyers throughout the pendency of his

case. Attached is an affidavit from William Noles, attorney for

Mr. King during the time period a claim could have been raised for

DNA as newly discovered evidence. The affidavit clearly states

that Mr. King repeatedly requested any scientific test of the

evidence in this case. Mr. Nolas, who was without the resources

necessary to conduct such an inquiry, failed to request DNA

testing. Thus, Mr. King should not be accountable for a request

which he made which was never acted on. Nevertheless, DNA testing

is clearly available to Mr. King under the new statute, so the

State’s argument is meritless.

Finally, the State argues that Mr. King has not made a

statement as to why this claim was not raised previously pursuant

10

to Fla. R. Crim. Proc. 3.851(e)(2)(B). Mr. King has made such a

statement repeatedly. Florida Statue 925.11 (2001), effective

October 1, 2001, gave prisoners the ability to request DNA testing

as long as the criteria of the statute were met. Before this time,

there was no statutory provision allowing this request. Thus, Mr.

King’s request is timely, anticipated, and intended by the

legislature of the State of Florida.

Based on the forgoing, the lower court improperly denied Mr.

King’s Motion for Postconviction Relief. This Court should order

that his conviction and sentence be vacated and remand the case for

a new trial, new evidentiary hearing, or such relief as the Court

deems proper.

11

I HEREBY CERTIFY that a true copy of the foregoing Reply

Brief of Appellant has been has been furnished by United States

Mail, first class postage prepaid, hand-delivery and/or by

electronic mail 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

Attorney 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

12

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

United States Supreme Court

ATTN: Cynthia Rapp

Washington, D.C. 20543

13

I hereby certify that a true copy of the foregoing Reply

Brief of Appellant, was generated in Courier New, 12 point font,

pursuant to Fla. R. App. P. 9.210.

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

Attorney For Appellant