IN THE SUPREME COURT OF FLORIDA
CASE NO. SC01-879
STATE OF FLORIDA,
Appellant/Cross-Appellee,
v.
GREGORY MILLS,
Appellee/Cross-Appellant.
ON APPEAL FROM THE CIRCUIT COURT
OF THE EIGHTEENTH JUDICIAL CIRCUIT,
IN AND FOR SEMINOLE COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLEE/CROSS-APPELLANT
TODD G. SCHER
Litigation Director
Florida Bar No. 0899641
CAPITAL COLLATERAL
REGIONAL COUNSEL--SOUTH
101 NE 3d Avenue
Suite 400
Ft. Lauderdale, FL 33301
(954) 713-1284
COUNSEL FOR
APPELLEE/CROSS-APPELLANT
1
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii
ARGUMENT IN REPLY
MR. MILLS IS ENTITLED TO A NEW TRIAL IN
LIGHT OF THE LOWER COURT'S FINDINGS AND CONCLUSIONS WITH
RESPECT TO THE SENTENCING PHASE. .......... 1
A. FALSE ASSERTION OF PROCEDURAL BAR/ABANDONMENT. 1
B. REPLY TO THE MERITS. ........... 4
CONCLUSION ....................... 10
CERTIFICATE OF COMPLIANCE ................ 10
ii
TABLE OF AUTHORITIES
Florida Bar v. Cox,
No. SC96217 (May 17, 2001) .............. 2
Florida Bar v. Feinberg,
760 So. 2d 933, 939 (Fla. 2000) ........... 2
Jones v. State,
591 So. 2d 911 (Fla. 1991) .............2, 4
Jones v. State,
591 So. 2d 911 (Fla. 1992) .............. *
Jones v. State,
709 So. 2d 512, 527 (Fla. 1998) ........... 8
Robinson v. State,
770 So. 2d 1167 (Fla. 2000) ............. 8
Stephens v. State,
748 So. 2d 1028, 1034 (Fla. 1999) .......... 7
United States v. Bagley,
473 U.S. 667, 683 (1985) ............... 8
1
Unfortunately, the State's tactic of providing falseinformation to this Court is not limited to this argument. In the
text of the other arguments in its Reply Brief, the State also makes
false assertions about what Mr. Mills did and did not raise below
with respect to the 1989 order at issue. See, e.g. RB at 13-14. Mr.
Mills' counsel will be more than happy to address these additional
falsities at the oral argument.
1
ARGUMENT IN REPLY
MR. MILLS IS ENTITLED TO A NEW TRIAL IN LIGHT
OF THE LOWER COURT'S FINDINGS AND CONCLUSIONS
WITH RESPECT TO THE SENTENCING PHASE.
A. FALSE ASSERTION OF PROCEDURAL BAR/ABANDONMENT.
In the first of the false assertions permeating the Appellant's
brief, the State argues that "[t]his claim is procedurally barred
because Mills did not request such relief from the Circuit Court" (RB
at 15). In a footnote, the State acknowledges the utter falsity of
its own argument:
In his Rule 3.850 motion, Mills asserted that
he should receive a new trial in the heading to
Claim I. He made one similar reference in his
closing argument, but, at the end of that
argument, specifically requested an evidentiary
hearing on the 1991 Rule 3.850 motion and a new
sentencing proceeding (R. 168).
(RB at 15 n.13). Nonetheless, the State goes on to aver that "Mills
abandoned his request for a new guilt phase proceeding by explicitly
seeking only sentencing stage relief in his final argument" (RB at
15).
These assertions are unabashedly false.
1 That the Statebelieves it helpful to its position to falsely represent this record
2
is indicative of its lack of confidence in its position, not to
mention its "win at all costs" mentality. It is one thing for
advocates to have a disagreement about the effect of evidence, or how
or what law applies to certain evidence. It is quite another,
however, to make completely false assertions, as the State has chosen
to do. The State's conduct is disturbing. Florida Bar v. Cox, No.
SC96217 (May 17, 2001). See also Florida Bar v. Feinberg, 760 So. 2d
933, 939 (Fla. 2000) ("[t]ruth is critical in the operation of our
judicial system and we find such affirmative misrepresentations by
any attorney, but especially one who represents the State of Florida,
to be disturbing").
Because of the State's unfortunate tactics, Mr. Mills counsel
must now expend time and effort to point out the utter falsity of the
State's allegations.
That Mr. Mills "requested" a new trial below is indisputable,
the State's false representations to this Court notwithstanding. The
request made in the claim heading for Claim I (PCR. 9). In the text
of the claim, Mr. Mills unambiguously stated: "Alone and
cumulatively, Ashley's confession clearly establishes a reasonable
probability of an acquittal. Jones v. State, 591 So. 2d 911 (Fla.
1992)" (PCR. 10). In his prayer for relief, Mr. Mills unambiguously
requested,
inter alia, "[t]hat his convictions and sentences,including his sentence of death, be vacated, and a new trial and/or
3
sentencing proceeding be ordered" (PCR. 18).
Moreover, Mr. Mills did not "abandon" his request during the
arguments that followed the evidentiary hearing, as the State falsely
asserts (RB at 15-16). During the closing argument, counsel
unambiguously stated that the claim relating to Anderson's testimony
"goes to both Mr. Mills' guilt phase as well as to the penalty phase"
(T. Hearing 4/30/01 at 157). Counsel went on to discuss how the
newly-discovered evidence affected the guilt phase, first addressing
the State's contention that "other evidence show[ed] that Mr. Mr.
Mills was, in fact, guilty of murder" (Id. at 157-61). Counsel also
specifically discussed that "what's significant in terms of the
deliberations of the guilt phase was the jury did ask for Ashley and
Davis' testimony to be read back. Obviously, you know, to me, that
indicates certainly that it was a matter of concern that they wanted
to hear that testimony again, we don't know what was in their minds
when they asked for that, but it simply shows that there was concern
on the jury's part. And that was the only critical testimony against
Mr. Mills in terms of Ashley and Davis" (Id. at 161). Counsel then
went on to discuss the antimony tests and their insignificance in
terms of the effect of the newly-discovered evidence on the guilt
phase of Mr. Mills' trial (Id. at 161-63). Counsel then summed up
the argument by unambiguously stating that "what Your Honor has to do
is determine whether [] at a retrial, if there's a reasonable
2
The State also asserts that the claim is "insufficientlybriefed" (RB at 16). The State fails to explain how it is
"insufficiently briefed." The argument clearly set forth the nature
of the claim, and noted that "[i]n light of the new evidence
indicating that Ashley was the shooter, and the arguments set forth
in Argument I, supra, the facts of this case should be subject to the
adversarial testing of a new trial. Jones v. State, 591 So. 2d 911
(Fla. 1991)) (Answer Brief of Appellee-Cross/Appellant at 73). It
certainly was "sufficiently" briefed for the State to allow it to
respond. See RB at 15-19. Thus, the State cannot demonstrate any
"prejudice." Mr. Mills did not believe it necessary to repeat
verbatim the factual basis for the argument, as it had been
exhaustively set forth in the preceding argument, as the brief noted.
4
probability of an acquittal, a different result based on John
Anderson's information in conjunction with the other information in
the case" (Id. at 163). When Judge Eaton attempted to discuss the
impact on the sentencing phase, Mr. Mills' counsel clearly stated
"Well, I'm talking a new trial" (Id.). At that point, counsel then
turned his attention to arguing the effect of the newly-discovered
evidence on the issue of the jury override (Id.). It could not be
clearer that Mr. Mills did not "abandon" the issue of a new trial
below, either in his pleading or during the closing argument. The
State's fictionalized account of the proceedings has no merit. Mr.
Mills' counsel does not understand why the State's representative
would make such clearly false arguments to this Court other than to
improperly focus attention from the merits of the case in the hopes
of thwarting review. The State's tactics are unfortunate and, as
demonstrated above, its arguments are devoid of any factual
veracity.
2Moreover, Mr. Mills' brief was written and filed in accordance with
the accelerated schedule requested by the State; thus, any putative
briefing "insufficiencies" are not attributable to Mr. Mills.
3
The State also argues that the gunshot residue test "tied" Mr.Mills to the shooting (RB at 3). This false assertion will be
discussed infra.
5
B. REPLY TO THE MERITS.
The State's own arguments opposing a new trial demonstrate the
tenuous basis of the evidence on which Mr. Mills' conviction rests.
In its statement of the facts, the only evidence pointed out by the
State upon which it relies to demonstrate the "strength" of the
prosecution's case came from either Vincent Ashley or Sylvester Davis
(RB at 1). The State acknowledges that it was Davis who put the
shotgun in the possession of Mr. Mills; and it was Davis and Ashley
who identified the shotgun introduced at trial as the one in Mr.
Mills' possession prior to the incident in question (Id.). The
remainder of the critical evidence against Mr. Mills, as described by
the State, came from the mouth of either Ashley or Davis (RB at 1-
3).
3 Even the State's reliance on Gloria Robinson's testimony isinsufficient; without Davis' testimony that Mr. Mills purportedly
told him that he was going to get his sister to pick up the weapon,
Robinson's testimony does nothing to demonstrate Mr. Mills' guilt.
The direct examination testimony of prosecution witnesses is
not the only information that must be looked to in assessing Mr.
Mills' entitlement to a new trial under Jones. Both Davis and Ashley
6
were cross-examined at trial. Mr. Mills' Answer Brief discusses the
impeachment of Davis at trial, and this will not be repeated herein.
See Answer Brief at 41-42; R. 122-41 (Cross-Examination of Sylvester
Davis). Suffice it to say that Davis, who acknowledged that he would
testify to anything to stay out of prison and who "exchanged a few
laughs" with Ashley when they saw each other in court (R. 135), was
not a witness who survived cross-examination with much, if any,
credibility. This applies equally to Ashley, whose deal brokered by
the State Attorney's Office guaranteed Ashley a free ride on a string
of felonies, not to mention the murder of James Wright. That their
testimony was important and of concern to the jury is demonstrated by
the jury's request for a read-back of their testimony (R. 473).
The only other "direct" evidence discussed by the State is the
gunshot residue test results (RB at 3). Nothing about the testimony
on this point "tied" Mr. Mills "to the shooting of James Wright"
(Id.). Again, the State ignores the record. The technician who
testified at trial on this issue was unable to testify to a
scientific certainty that Mr. Mills fired a weapon based on the
results obtained. While the results were slightly higher than
normal, they were far below the amount necessary to be conclusive (R.
384-392). Moreover, that Ashley had no residue on his hands (RB at
3), is not dispositive of whether he fired a weapon. The state's own
witness admitted that there existed numerous factors which could
7
effect the test results (R. 305-306). A person did not have to shoot
or handle a gun for the results to be positive. Most people walking
the streets have some traces of antimony, which is the element tested
for (R. 388-392). The state's gunshot residue witness also testified
that contact with certain metals, e.g., lead, could produce results
similar to that obtained from people who had shot a firearm (R. 392-
393, 395-396). Also effecting the test results is the fact that
antimony particles can be wiped off; moreover, the particles
dissipate over a period of time (R. 312-313). In the present case,
there was testimony concerning a two-hour delay in taking Ashley's
test, during which time Ashley was rubbing his hands on the grips of
his bicycle and could have wiped his sweaty hands onto his clothing
(R. 312-313). The police did not test Ashley's clothing or the grips
of his bicycle for any antimony residue (R. 309, 313). Thus, the
State's reliance at this point on the outcome of the test results in
this case is misplaced.
Next, the State repeats its arguments about the "significant
credibility issues surrounding Anderson's testimony" (RB at 16
et.seq
.). The State repeats its personal beliefs that Anderson'stestimony was "clearly shown to be false" (RB at 16), or were
"outright lies" (RB at 8), and that "the lower court made no
credibility determinations" with respect to Anderson (RB at 8). As
set forth in Mr. Mills' Answer Brief and as clearly established by
4
The State insists on asserting that Judge Eaton made nocredibility determinations as to Anderson, yet in its Initial Brief,
chides him for his "repetition of the mantra of `credibility'" (IB at
23). The State's arguments are inconsistent, to say the least.
5
And one which, when credibility determinations are made againstdefense witnesses, the State chides collateral counsel for refusing
to accept. The rules are the same, however, for both sides.
Changing the rules for the State in this case would require
revisitation of every case in which this Court has upheld credibility
determinations adverse to defendants.
8
Judge Eaton's order, the State's assertions are palpably and
demonstrably false. See Answer Brief at 28-29; PCR. 287.
4 The lowercourt did not "ignore" the credibility arguments being asserted by
the State (RB at 16), but rather considered and rejected them in
crediting Anderson's testimony and finding him credible. This is a
significant difference, one which the State refuses to accept.
5These credibility determinations apply equally to Mr. Mills' claim
for a new trial. Stephens v. State, 748 So. 2d 1028, 1034 (Fla.
1999) ("We recognize and honor the trial court's superior vantage
point in assessing the credibility of witnesses and in making
findings of fact"). No matter how many times the State expresses its
belief that Anderson's testimony is false, this does not change Judge
Eaton's order or the deference to which it is entitled. Id. The
hysterical tenor of the State's argument simply points to the need to
have the facts of this case, as they now stand, subjected to the
crucible of an adversarial testing. See Jones v. State, 709 So. 2d
512, 527 (Fla. 1998) (Anstead, J., concurring in part and dissenting
6
Mr. Mills also submits that the State's reliance on Mr. Mills'testimony is an improper application of the Jones analysis. The
analysis of newly-discovered evidence in the Jones context cannot
presuppose that the defendant would or would not testify at a
retrial, since a decision whether to testify is a strategic one that
must be made on the advice of counsel and with full knowledge of the
prosecution's case. Just as the discovery of material exculpatory
evidence could alter the defense strategy at trial, see United States
v. Bagley, 473 U.S. 667, 683 (1985) ("The reviewing court should
assess the possibility that such effect might have occurred in light
of the totality of the circumstances and with an awareness of the
difficult in reconstructing in a post-trial proceeding the course
that the defense and the trial would have taken had the defense not
been misled by the prosecutor's incomplete response"), so too could
the introduction of newly-discovered evidence into the "mix" of
evidence alter strategy decisions. Mr. Mills does not have the
burden of establish his innocence at a retrial; rather, the State has
the burden of establishing his guilt beyond a reasonable doubt.
9
in part) (noting troubling nature of case where there is evidence
that another person committed the murder "yet none of this evidence
was heard by the jury that tried and convicted Jones").
The State next argues that the "theory" that Ashley was the
triggerman is "inconsistent" with the theory at trial, that is, that
Mr. Mills was not involved, as he testified (RB at 17-18). This
argument overlooks the fact that Anderson's credible testimony
constitutes newly discovered evidence of impeachment as to Ashley.
Jones, 709 So. 2d at 521; Robinson v. State, 770 So. 2d 1167 (Fla.
2000).
6 In light of this newly discovered evidence, the case atretrial would come down to a "battle" so to speak between Ashley's
version of events and Mr. Mills' version of events. As conceded by
10
the State in its Initial Brief, "[o]f course, the determination of
the credibility of an accomplice's version of the crime is for the
jury to make" (IB at 14 n.12). Mr. Mills agrees that the jury should
now make this determination. Here, in light of the newly discovered
evidence, alone and in conjunction with the weakness of the State's
case and Ashley's other version of the events that was subject of the
previous appeal, it is clear that the facts should be subjected to
the crucible of an adversarial testing before a jury, as there is a
reasonable probability of an acquittal.
As Judge Eaton found, Ashley, due to his varying versions of
the events over the years, is the "least credible witnesses that has
ever appeared" before him. A conviction for first-degree murder
should not be based on such a person's testimony, particularly when
that person is an accomplice with complete immunity from prosecution.
The State's blind willingness to stand by such a conviction no matter
how tenuous the evidence speaks volumes for what it believes its role
is in criminal prosecutions: winning at all costs no matter what. In
this age of repeated exonerations of defendants from death row (with
Florida leading the nation), the State's position is more than
troubling. A new trial should be ordered.
11
12
CONCLUSION
In light of the foregoing arguments, Mr. Mills submits that a
new trial is warranted.
CERTIFICATE OF COMPLIANCE
This brief is typed in Courier New 12 point.
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished by fax and Federal Express to all counsel of record on May
25, 2001.
TODD G. SCHER
Florida Bar No. 0899641
Litigation Director
CCRC South
101 NE 3d Avenue, Suite 400
Ft. Lauderdale, Florida 33301
(954) 713-1284
Attorney for Appellee/Cross-Appellant
Copies furnished to:
Kenneth Nunnelley, Asst. Attorney General
Office of the Attorney General
444 Seabreeze Boulevard, 5th Floor
Daytona Beach, FL 32118