i

Citations in this brief to designate references to the records, followed by the

appropriate page number, are as follows:

"R1. ___" - Record on appeal to this Court in 1985 direct appeal;

"PC-R. ___" - Record on appeal to this Court from 1990 denial of the

Motion to Vacate Judgment and Sentence;

"R2. ___" - Record on appeal to this Court from 2000 re-imposition of

sentence of death;

"T2 ___" - Transcript of re-sentencing proceedings;

"TS2 ___" - Supplemental transcripts.

All other citations will be self-explanatory or will otherwise be explained.

Mr. Duest, through counsel, respectfully repeats his request that the Court

permit oral argument.

ii

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

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

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

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

REPLY TO STATE’S STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT IN REPLY

ARGUMENT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Mandate Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Contention of Failure to Object to Testimony . . . . . . . . . . . . . 6

1. No election occurred . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. The constitutional error occurred in 1983 . . . . . . . . . . . 9

3. Mr. Duest has raised the issue . . . . . . . . . . . . . . . . . . . 9

C. Merits of Brady/Giglio Claim . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Preservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

D. State v. Wright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ARGUMENT III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii

ARGUMENT V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ARGUMENT VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

ARGUMENT VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

ARGUMENT XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iv

Almendarez-Torres v. United States,

523 U.S. 224 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Apprendi v. New Jersey,

530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Bryant v. State,

601 So. 2d 529 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cardona v. State,

___ So.2d ___, 27 Fla. L. Weekly S673

(Fla. July 11, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Carpenter v. State,

785 So.2d 1182 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Combs v. State,

525 So.2d 853 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Connor v. State,

803 So. 2d 598 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 30

Duest v. Singletary,

Garcia v. State,

622 So.2d 1325 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Geralds v. State,

674 So. 2d 96 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Gorham v. State,

597 So.2d 782 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Grossman v. State,

525 So. 2d 833 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Hoffman v. State,

800 So.2d 174 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

v

Hooper v. State,

476 So. 2d 1253 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Jackson v. State,

648 So. 2d 85 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Jones v. State,

709 So.2d 512 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

King v. State,

623 So. 2d 486 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Lightbourne v. Dugger,

549 So.2d 1364 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Lightbourne v. Dugger,

Lightbourne v. State,

742 So.2d 238 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mann v. Dugger,

Medina v. State,

466 So.2d 1046 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mills v. Singletary,

Omelus v. State,

584 So. 2d 563 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Pangburn v. State,

661 So. 2d 1182 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Ring v. Arizona,

122 S. Ct. 2428 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

vi

Roberts v. Singletary,

Roberts v. State,

678 So.2d 1232 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Rogers v. State,

782 So.2d 373 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Roman v. State,

528 So.2d 1169 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ross v. State,

386 So. 2d 1191 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Scott v. Dugger,

Scott v. State,

657 So.2d 1129 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Smith v. State,

492 So. 2d 1063 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

State v.Dixon,

283 So. 2d 1 (Fla. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

State v. Gunsby,

670 So.2d 920 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21

State v. Mills,

788 So.2d 249 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Wright,

Stephens v. State,

748 So. 2d 1028 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Stewart v. State,

558 So. 2d 416 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Strickler v. Greene,

vii

527 U.S. 263 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tompkins v. Dugger,

549 So.2d 1370 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Walton v. Arizona,

497 U.S. 639 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Waterhouse v. State,

429 So. 2d 301 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Waterhouse v. State,

596 So. 2d 1008 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

White v. State,

616 So. 2d 21 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1

Mr. Duest continues to rely upon the Statement of the Case contained in the

Initial Brief. However, a few brief points should be made regarding the Statement

of the Case in the Answer Brief. First, the Answer Brief does not at any point refer

to the record from the original direct appeal. Thus, it appears that the State did not

consider that record in any way in preparing its Answer Brief.

Additionally, the Answer Brief misstates the record, particularly as to the

testimony of Dr. Wright, the medical examiner. In order to emphasize the amount

of blood that Dr. Wright estimated was present in Mr. Pope’s bed, the State

asserts, "Dr. Wright testified that the amount of blood found on the victim’s bed

equated to approximately 1/5 of Mr. Pope’s blood volume" (Answer Brief at 2).

Dr. Wright did make this estimation based upon his examination of crime scene

photographs. However, he explained that this "was seven hundred and fifty m.l. or

about the amount of a bottle of wine" (T2. 383). He agreed "that would not have

been enough to kill the person" (T2. 383). Dr. Wright pointed out that Mr. Pope

left the bed and traversed the bedroom to get to the bathroom. Dr. Wright could

find only "one drop" of blood in the presumptive pathway. That one drop was on

Mr. Pope’s clothing at the foot of the bed (T2. 390). Accordingly, Dr. Wright

concluded that a conscious Mr. Pope stopped the blood flow before leaving the

bed (T2. 391).

And then when he was in the bathroom he went to get the toilet paper

and he took his finger off of it and it started spurting out again and

then he moved around in various places, even toward the back of the

when the wounds were inflicted, and was conscious for a matter

of minutes after being stabbed in the heart" (Answer Brief at

2). In fact, Dr. Wright agreed with the prosecutor’s

statements that "Mr. Pope was alive during the infliction of

these wounds until he finally passed out" and that this was "a

State’s deletion of the word "many" substantially alters the

import of Dr. Wright’s testimony. Moreover, Dr. Wright opined

that despite his injuries "there’s an outrageously high

probability" that Mr. Pope would have survived had he called

for help (T2. 393).

2

tub over there. And whenever he takes his hand off, it would start

spurting again.

(T2. 392).

The Answer Brief also states, "Dr. Wright testified [in 1983] that Mr. Pope

died within five minutes after the attack, now his opinion is that it may have taken

between 15 and 20 minutes for Mr. Pope to die" (Answer Brief at 3). The State

Mr. Pope looked actually quite a bit younger than his stated age of 60,

whatever, and he had good coronary arteries and of the other things

that you can kind of look at. So it’s that variable that makes it difficult

to know. Under ordinary circumstances I would expect a person to

be conscious and about for a matter of 15 or 20 minutes after they

received that kind of injury.

Q. 15 to 20 minutes?

A. Sure, and then actually you see they will loose consciousness,

then they will be alive for a little while after that and that’s probably

another five or ten minutes.

(T2. 388).

As to his 1983 testimony, Dr. Wright testified in 1998 that in 1983 he had

indicated that Mr. Pope may have died within ten to fifteen seconds:

3

Q. Is that your opinion?

A. No, not now, I don’t think it was then. I think I was giving

whoever was asking the questions at the time of the absolute, absolute

lowest possibility under any circumstances that would be loss of

blood pressure immediately from the heart.

Q. It would have been ten to fifteen?

A. Right.

Q. Then you also said, but no more than five minutes, is that

correct?

A. That is what I testified to back then.

A. Approximately, I don’t remember the exact date, I forgot that.

Q. Well, no more than five minutes, that was 1-13-93?

A. Right.

Q. Excuse me, ‘83, correct?

A. Yes.

Q. Today which is 10-12-98, we are talking fifteen to twenty

minutes, correct?

A. Yeah, maybe even more. I mean, part of that he’s unconscious.

I mean, we are talking about conscious behavior, I could probably go

up to half an hour, in that, he would still have at least the threat pulse

[sic] pulse or E.K.G. of being alive.

(T2. 405-06).

The State represents that "Dr. Wright opined that it was difficult to determine

how long a person could have survived, but said he could have lived if he called for

help within the first five minutes after the attack" (Answer Brief at 3). In fact, Dr.

4

Wright’s testimony was stronger in this regard:

Q. Okay, that had he lived that long it is your conclusion that had

he picked up the phone and telephoned rescue or police that he

certainly would have received treatment that would have saved his life,

is that correct?

A. Sure, if he had done that during the first five minutes. There’s

really just no [doubt], he would have done fine and this his - - as you

go further down the line ten, fifteen minutes it raises the possibility that

he could not be resuscitated but he’s not going to cross over 50/50

until pretty late, that in that time period, that is a 50/50 chance of being

successfully resuscitated.

(T2. 406-07).

The State advances three contentions in response to Mr. Duest’s

Brady/Giglio claim contained in Argument I of the Initial Brief. First, the State

maintains that the Eleventh Circuit decision denying Mr. Duest a new trial while

granting a resentencing is law of the case depriving this Court of jurisdiction to

consider Mr. Duest’s challenge to the validity of his conviction in light of newly

disclosed exculpatory evidence (Answer Brief at 12-13). Second, the State argues

that Mr. Duest’s Brady/Giglio claim was not preserved when Mr. Duest failed to

object to Dr. Wright’s testimony during the resentencing, but instead impeached

Dr. Wright with his prior testimony (Answer Brief at 13). Third, the State argues

that Mr. Duest’s Brady/Giglio claim is meritless because Mr. Duest’s counsel

impeached Dr. Wright during the resentencing with evidence that allegedly was

undisclosed (Answer Brief at 14).

State, 678 So.2d 1232 (Fla. 1996) (remanding for evidentiary

hearing on previously undisclosed evidence of Brady/Giglio

State, 657 So.2d 1129 (Fla. 1995) (remanding for evidentiary

hearing on previously undisclosed evidence of Brady/Giglio

5

The State first argues:

Under the "mandate rule," an inferior court has no power or authority

to deviate from the mandate issued by an appellate court, as the

mandate rule is a more powerful version of the "law-of-the-case

doctrine", which prevents lower courts from reconsidering issues that

have already been decided.

Answer Brief at 12. According to the State, the decision of the Eleventh Circuit (a

higher appellate court under the State’s theory) rejecting Mr. Duest’s arguments in

favor of a new trial binds this Court, precluding consideration of Mr. Duest’s claim

that he should be granted a new trial and divesting this Court of jurisdiction to hear

that claim (Answer Brief at 13).

The State’s premise that this Court is "an inferior court" or "lower court" in

relationship to the Eleventh Circuit is wrong. For example, this Court has refused

banc), as binding. Combs v. State, 525 So.2d 853 (Fla. 1988); Tompkins v.

Dugger, 549 So.2d 1370, 1372 n.5 (Fla. 1989). The fallacy of the State’s argument

can be seen in a number of capital cases in which the Eleventh Circuit denied

federal habeas relief and issued a mandate, but in which this Court later ordered

Lightbourne v. Dugger, 549 So.2d 1364 (Fla. 1989) (remanding

for evidentiary hearing on previously undisclosed evidence of

State v. Mills, 788 So.2d 249 (Fla. 2001) (affirming grant of

resentencing based on newly discovered evidence).

6

clear that when a capital defendant presents constitutional claims based upon

evidence that was not available to the defendant during prior litigation in state and

federal court, the resulting claim will be considered, unimpeded by any Eleventh

Circuit denial of federal habeas relief and issuance of a mandate.

Just as this Court had jurisdiction to consider the subsequent Brady/Giglio

claims premised upon previously undisclosed evidence in Roberts, Scott, and

Lightbourne, so too this Court has jurisdiction to entertain Mr. Duest’s claim that

the State failed to disclose that it had presented false and misleading testimony at

his 1983 trial. This is because, as the record clearly establishes, the State did not

disclose the fact that false and misleading testimony had been presented in 1983

until the middle of the 1998 resentencing.

After arguing the Florida state courts are without jurisdiction to entertain Mr.

Duest’s Brady claim, the State makes a 180 degree turn and argues that Mr. Duest

failed to object at his resentencing to Dr. Wright’s testimony, but elected to

impeach Dr. Wright with his 1983 testimony (Answer Brief at 13-14). The State is

wrong again.

homicide occurred in Wyoming and captured national attention

(T2. 377). Matthew Shephard was a gay college student found

tied to a fence outside of Laramie, Wyoming. It was after the

weekend recess that Dr. Wright during the cross-examination

first explained why he believed that Mr. Pope did not call for

help, "these kinds of people when something like this happens,

not necessarily just getting robbed or injured, they don’t

call the police very much" (T2. 393).

7

First, the State seems to have the sequence of events confused. Dr. Wright

was called by the State as the first witness at the resentencing on October 7, 1998

(T2. 335). At the conclusion of the direct examination, proceedings were recessed

for a long weekend (T2. 370). When the proceedings resumed on October 12,

cross-examination, the discrepancy between Dr. Wright’s 1983 testimony and his

1998 testimony became more and more pronounced. The discrepancy was to Mr.

Duest’s benefit, as it mitigated the brutality of the murder. Mr. Duest’s counsel

clearly sought to elicit details of the surprisingly helpful testimony (T2. 381-90).

At one point, counsel asked if Dr. Wright had "thought about" the case more

during the long weekend recess (T2. 390). In context, counsel was trying to

understand Dr. Wright’s comment that he had not previously understood the

significance of the absence of blood between the bed and the bathroom (T2. 390).

Dr. Wright responded that he had not looked at the files since the redirect in 1983,

but indicated his changed opinion pre-dated the direct examination in 1998.

Mr. Duest’s counsel continued to elicit from Dr. Wright more details

concerning his opinion, which though different from his 1983 testimony was much

8

more favorable to Mr. Duest (T2. 390-98). Then, counsel turned to Dr. Wright’s

statement on direct that a wound on the arm may have been "defensive" in nature.

As to this statement, counsel sought to elicit the fact that Dr. Wright testified in

1983 that there were no defensive wounds (T2. 398). After acknowledging that he

had so testified in 1983, Dr. Wright stated that "when I read my deposition over

and had an opportunity to look at all of those photographs, I realized that I was

incorrect" (T2. 399-400). Dr. Wright then volunteered why his conclusions in 1983

had been incorrect:

And the reason for that was the fact that, again, it kind of, I was

deposed about 11 months after the death of Mr. Pope in doing the

autopsy and I did not unfortunately have available to me the scene

photographs because for reasons either that they didn’t turn out or

that they had been misfiled or whatever. I didn’t have the scene

photographs.

(T2. 400).

Until Dr. Wright took the stand at the resentencing, neither Mr. Duest nor his

counsel were aware that he would reveal that his 1983 testimony was "incorrect."

Nor were they advised that Dr. Wright attributed his "incorrect" testimony to a

failure to review crime scene photographs. The Answer Brief erroneously

characterizes counsel’s cross-examination as an election to impeach Dr. Wright

instead of objecting to the Brady/Giglio violation arising from the presentation of

false or misleading testimony in 1983. Counsel cross-examined Dr. Wright. Only

in the course of that cross-examination did Dr. Wright reveal that his 1983

testimony had been "incorrect."

9

Second, the State does not grasp that the constitutional problem revealed by

Dr. Wright’s 1998 testimony occurred at the 1983 trial when the State failed to

disclose that Dr. Wright’s testimony was "incorrect", i.e. false or misleading. The

evidence of the Brady/Giglio error was revealed during the cross-examination at the

resentencing in 1998. Under Rule 3.850, Mr. Duest has until a year after his

judgment and sentence of death become final to raise constitutional challenges. At

this point, Mr. Duest’s judgment and sentence have not yet become final.

Nevertheless, Mr. Duest has attempted to raise the issue anyway.

Mr. Duest did address the newly disclosed evidence in the trial court in his

sentencing memorandum filed in February of 1999:

First, the State introduced new evidence in 1998 which directly

contradicted and refuted evidence presented in 1983. This new

evidence is particularly significant in reference to the CCP aggravator,

* * *

The State has asserted that the evidence of premeditated murder

establishes the aggravator of CCP. In fact that was the basis of the

1983 finding; simple premeditation was accepted as establishing CCP

(actually simply having a plan to rob was the basis for this finding).

There is now in 1999 both a legal and factual problem with the State’s

assertion. First, the factual problem arises from the 1998 testimony of

the medical examiner, Dr. Wright. Mr. Duest recognizes that his 1983

conviction of first degree premeditated murder was not overturned by

the Eleventh Circuit’s decision. However, the evidence presented by

the State at the 1998 resentencing was different in a significant and

10

material way. In 1983, Dr. Wright testified that Mr. Pope died within a

minute of receiving his injuries. In 1998, Dr. Wright testified that Mr.

Pope did not die rapidly; in fact, he would have survived had he called

for help. Dr. Wright stated that Mr. Pope survived for as long as

thirty (30) minutes after he was injured. His 1998 testimony was based

upon evidence of Mr. Pope’s movements after he received his injuries.

Dr. Wright could tell that Mr. Pope exited his bedroom on his own

power and went into the bathroom in attempt to attend to his injuries.

Dr. Wright opined that had Mr. Pope called for help within the first ten

(10) minutes, he certainly would have survived. The significance of

this change in testimony as to the CCP aggravator is that the assailant

obviously left Mr. Pope alive and physically able to move and seek

help.

* * *

The new facts that came out from the medical examiner’s testimony in

1998 establish that the State with these new, uncontested facts cannot

establish CCP beyond a reasonable doubt. It is the State’s burden to

prove the aggravator beyond a reasonable doubt. "[T]o satisfy the

burden of proof, the circumstantial evidence must be inconsistent with

any reasonable hypothesis which might negate the aggravating factor."

Geralds v. State, 601 So. 2d 1157, 1163 (Fla. 1992). The fact that Mr.

Pope was neither dead nor immobilized when his assailant left his

house is inconsistent with an execution, contract murder or witness

elimination killing. It is in fact inconsistent with any intent to kill

because Mr. Pope was not dead and according to the medical

examiner was left with the power to save himself by calling for help. It

is much more consistent with a "rash and spontaneous killing

evidenced [by] no analytical thinking, no conscious and welldeveloped

plan to kill." Mahn, 714 So. 2d at 398. See Besaraba v.

State, 656 So. 2d 441, 444-45 (Fla. 1995).

(R2. 356, 357, 358)(emphasis added).

Before this Court on May 9, 2001, Mr. Duest submitted a Motion for

Relinquishment and/or Stay, in which he stated:

At the 1998 resentencing Dr. Wright acknowledged his prior

testimony, but indicated that it was in error. His testimony in

1998 was that upon reviewing his files and notes he discovered

that the victim in that case had survived between fifteen and

11

thirty minutes (RS-T. 405-06). He further opined for the first

time that the victim would have survived if he had called 911.

The fact that Dr. Wright testified that his original testimony in

the Duest case was wrong is evidence which in and of itself

warrants Rule 3.850 proceedings as to the continued validity of

Mr. Duest’s conviction. This evidence serious undermines the

State case for premeditation. His assailant left Mr. Pope with

the ability to save himself by calling 911. This fact is

inconsistent with a premeditated intent to kill.

(Motion for Relinquishment at 4). Accordingly, Mr. Duest asked:

WHEREFORE, Lloyd Duest requests that the Court grant a

relinquishment in this cause to permit Rule 3.850 proceedings

regarding Mr. Duest’s conviction to be entertained and for the

disclosure of favorable evidence within the meaning of Brady by

the State.

(Motion for Relinquishment at 12).

The State responded and objected to Mr. Duest’s request. The State

explained its understanding of Mr. Duest’s motion:

Appellant now asks this Court to relinquish jurisdiction of the direct

appeal so that he can file a rule 3.850 post-conviction motion attacking

his first-degree murder conviction. As grounds therefor, Appellant

alleges that there is "newly discovered evidence" in this case

warranting a 3.850 motion. Specifically, he argues that Dr. Wright, the

medical examiner, acknowledged at the re-sentencing hearing that his

testimony at Appellant’s trial was wrong. According to Appellant, Dr.

Wright testified at Appellant’s trial that the victim died somewhere

between fifteen seconds and five minutes after being stabbed, but at

the re-sentencing hearing testified that the victim survived between

fifteen to thirty minutes and would have survived if he had called 911.

Appellant contends that this "newly discovered evidence" seriously

undermines the State’s case for premeditation, thereby entitling him to

relinquishment for a 3.850 motion.

(State Response to Appellant’s Motion for Relinquishment at 1-2). The State

opposed the motion, saying:

12

Because the alleged "newly discovered" does not apply to

premeditation, Appellant is procedurally barred from raising another

attack, in a successive 3.850 motion, upon the sufficiency of the

premeditation evidence.

(State Response to Appellant’s Motion for Relinquishment at 3).

On June 18, 2001, this Court denied Mr. Duest’s motion for relinquishment.

Accordingly, Mr. Duest has raised the issue in his Initial Brief.

The State argues in its brief:

The fact that Dr. Wright changed his testimony is not a Brady

violation, considering the fact that Duest was prepared to impeach him

with the 1983 deposition.

(Answer Brief at 14-15). Thus, the "fact that Dr. Wright changed his testimony" is

not contested. Instead, the State contends that Mr. Duest’s opportunity to crossexamine

Dr. Wright in 1998 somehow cured the error that occurred in 1983 when

the jury that convicted Mr. Duest of first degree murder was provided false and

misleading testimony.

The State’s position is ludicrous. Mr. Duest argued in his Initial Brief that "it

was not until the State called its first witness, Dr. Wright, that it revealed to Mr.

Duest that Dr. Wright’s testimony at the 1983 trial was ‘incorrect’" (Initial Brief at

51). Mr. Duest specifically argued that cumulative consideration of all the

undisclosed Brady material put the case "into an entirely new light. Confidence is

undermined in the guilt determination" (Initial Brief at 61). Presentation of Dr.

Wright’s changed testimony at the resentencing could not possible cure the

Duest was precluded at the resentencing from contesting his

guilt or the guilt determination made in 1983.

13

As to whether the guilt determination can be questioned in light of Dr.

Wright’s disclosure that his prior testimony was "incorrect," the State argues,

"Duest has already been convicted of the murder and that conviction is law of the

case" (Answer Brief at 19). Of course, every capital defendant who has obtained a

new trial from this Court because of a Brady violation "ha[d] already been

convicted of the murder." The fact that this Court nonetheless grants new trials

repudiates the State argument that a "conviction is law of the case" precluding

consideration of whether a Brady violation warrants a new trial. See Cardona v.

State, ___ So.2d ___, 27 Fla. L. Weekly S673 (Fla. July 11, 2002); Hoffman v.

State, 800 So.2d 174 (Fla. 2001); Rogers v. State, 782 So.2d 373 (Fla. 2001); State

v. Gunsby, 670 So.2d 920 (Fla. 1996); Gorham v. State, 597 So.2d 782 (Fla.

1992); Roman v. State, 528 So.2d 1169 (Fla. 1988).

Finally, as to the cumulative consideration required by the United States

Supreme Court’s decision in Kyles v. Whitley, 514 U.S. 419 (1995), the State

argues cumulative consideration of undisclosed Brady material previously found

not to undermine confidence in the outcome of the guilt phase determination is

"procedurally barred as it has been fully litigated and found to be irrelevant to

determination that the undisclosed bus ticket was

"irrelevant". The Eleventh Circuit rejected the claim because

it concluded that nondisclosure alone did not create a

"reasonable probability" of a different outcome of the guilty

1992). The bus ticket corroborated the testimony of Mr.

Duest’s parents. More importantly, it corroborated the

statement Mr. Duest made at the time of his arrest. And it

impeached testimony from police officers that no evidence

could be found to verify Mr. Duest’s statement. The bus

ticket was clearly relevant.

14

argument in Lightbourne v. State, 742 So.2d 238 (Fla. 1999).

The State argues:

Moreover, even if this court were to consider that it took Pope fifteen

to twenty minutes to die, cumulatively with the bus ticket, such

evidence does not undermine the conviction because the fact that

Duest traveled from Boston to Florida 49 days after the murder is

remains irrelevant and has absolutely no connection to how long it

took for Mr. Pope to die.

(Answer Brief at 20).

The State’s argument overlooks the import of Kyles v. Whitley. In

conducting cumulative consideration of the Brady material, the analysis must look

to the undisclosed evidence and how trial counsel may have used the evidence to

undermine the State’s case.

Here, Mr. Duest maintained his innocence at trial and presented eleven

witnesses in support of his claim that he was in Massachusetts during President’s

Day weekend, 1982. The jury was presented with a credibility battle: should it

believe the State’s witnesses who identified Mr. Duest as "Danny," the person they

15

partied with in Fort Lauderdale that weekend, or should it believe the defense

witnesses, who testified Mr. Duest was in Massachusetts that same weekend.

Undeniably, the bus ticket reflecting travel from Boston to Miami in April of

1982 was not disclosed. The bus ticket could have been used to corroborate the

testimony of Mr. Duest’s parents that they placed him on a bus in Boston in early

April of 1982. It could have corroborated Mr. Duest’s statement to the police at

the time of his arrest that he had just arrived in Fort Lauderdale days before. The

State introduced that statement and proceeded to present testimony that law

enforcement could not find any evidence to corroborate Mr. Duest’s story in order

to portray Mr. Duest as a liar. The bus ticket would have demonstrated that Mr.

Duest had in fact been truthful when he said he had just arrived in town the week

before via a Trailways bus. Certainly, the State’s possession of the bus ticket

impeaches the credibility of law enforcement and reliability of its investigation.

Kyles, 514 U.S. at 446 ("the defense could have examined the police to good effect

on their knowledge of Beanie’s statements and so have attacked the reliability of the

investigation").

Even though the Eleventh Circuit concluded that the bus ticket alone did not

establish a reasonable probability of a different outcome, the undisclosed evidence

that Dr. Wright’s testimony was false and misleading when considered along with

the bus ticket does cause the tipping point to be reached now. Confidence must be

undermined in the outcome.

Dr. Wright, the State’s medical examiner and undeniably a State agent,

16

explained that his "incorrect" testimony was due to his failure to have access to the

crime scene photographs. This constituted evidence of an unreliable investigation

by law enforcement. Combined with the State’s claim that no corroboration

existed of Mr. Duest’s claim to have arrived in Fort Lauderdale on a bus in April, it

clearly establishes "that the police had been guilty of negligence." Kyles, 514 U.S.

at 447. It undercuts the reliability of the entire police investigation.

Moreover, Dr. Wright’s 1998 testimony changed the dynamics of the

homicide. Dr. Wright acknowledged that Mr. Pope had the means to save himself.

The question arose as to why he failed to get help. Certainly, defense counsel

armed with this testimony during the guilt phase proceeding could have advanced

the argument that a perfectly plausible explanation was that Mr. Pope was stabbed

in the course of a domestic confrontation. Mr. Pope was living with David Shifflett

who was "approximately forty years younger than Mr. Pope" (T2. 577), and who

"used drugs and was not required to pay rent" (T2. 578). Yet, Mr. Pope was at a

bar leaving with another man, who was also much younger than himself. Mr.

Shifflett claimed to have arrived home at 6:15 p.m. and notice that the front door

was open and that Mr. Pope’s car was gone (T2. 413, 429). However, he failed to

discover anything awry until another friend arrived at 8:00 p.m. (T2. 419). With a

witness then present, Mr. Shifflet suddenly noticed that a light was on in Mr.

Pope’s bathroom and his bed was covered with blood (T2. 419). At that point, he

called the police. When the police arrived, they noticed that the clothes dryer was

running and clothes were inside it (R1. 474). Mr. Shifflet was also able to report

17

that a jewelry box was missing (R1. 422).

Dr. Wright’s description of Mr. Pope’s behavior would have been consistent

with an argument that Mr. Pope was stabbed in the course of fight produced by

jealousy or other emotion. See Carpenter v. State, 785 So.2d 1182 (Fla. 2001). Of

course, an innocent Mr. Duest was not in a position to know who actually killed

Mr. Pope. His counsel was forced to examine the available evidence and draw

inferences as to who could have possibly stabbed Mr. Pope. The available

evidence in 1998 permitted dramatically different inferences than the "incorrect"

evidence presented by the State in 1983.

Dr. Wright’s description of Mr. Pope’s reluctance to save himself also

means that the assailant knew he left Mr. Pope injured, but alive and conscious. It

provides insight into the assailant’s mind, as well as Mr. Pope’s. In so doing, it

changes the profile of the assailant. An assailant who knowingly left Mr. Pope alive

and conscious is different than the assailant described by Dr. Wright’s "incorrect"

testimony in 1983 who finished off Mr. Pope before leaving.

In Argument II of the Initial Brief, Mr. Duest contended that the trial court

erred when it refused to order the State to provide the criminal records of the

State’s witnesses. As to this Argument, the State initially notes that the issue is

reviewed under an abuse of discretion standard. Second, the State responds that

the State has no obligation to provide criminal records unless and until the accused

proves that he has exercised diligence in attempting to obtain the criminal records

18

from another source. Third, the State maintains that Mr. Duest did not preserve

recently held that the State cannot be required to turn over the criminal records of

witnesses if the criminal record was generated by a non-state agency that provides

the State with the information pursuant to a confidentiality agreement.

Mr. Duest disagrees with the State’s contention that the circuit court’s denial

of Mr. Duest’s motion for the production of the criminal histories of the State’s

witnesses is subject to the abuse of discretion standard of review. The motion was

premised upon Mr. Duest’s federal constitutional "right to a fair trial" (R2. 104). It

sought to have the prosecutor obtain such records and provide them to the

defense. The circuit court denied the motion indicating that disclosure would be

ordered only if Mr. Duest had some specific reason to believe that a particular

witness had a criminal record (T2. 123). The circuit court placed upon Mr. Duest

an initial burden of proof. Mr. Duest challenges that legal determination. Legal

(Fla. 1999)(appellate courts have an "obligation to independently review questions

of fact and law of constitutional magnitude"). Accordingly, this Court must review

obtain criminal histories from the State unless he already has some evidence that the

witness has a criminal history.

19

The State argues, "[t]his claim is meritless as the State is not required to

provide such records unless Duest has shown that he exercised due diligence to

obtain the records from another source, yet was unsuccessful" (Answer Brief at

21). The State relies upon Medina v. State, 466 So.2d 1046 (Fla. 1985), for the

proposition that "Duest bears the initial burden of trying to discover such evidence

and the State is not required to prepare the defense’s case" (Answer Brief at 21).

However, this Court in Medina actually said:

The court granted the motion to the extent of information contained in

the state’s files, but properly held that the defense has the initial

burden of trying to discover such evidence and that the state is not

required to prepare the defense’s case.

Medina, 466 So.2d at 1049. Here, the trial court did not order the State to disclose

any criminal records in its file.

Moreover, since the decision in Medina, the United States Supreme Court

has made it clear that the prosecutor’s obligation to disclose evidence impeaching

State witnesses is not dependent upon defense counsel’s diligence in attempting to

unearth the impeachment from another source. In Strickler v. Greene, 527 U.S.

263, 287-288 (1999), the Supreme Court specifically delineated the "three

components of a true Brady violation." They are: 1)"The evidence at issue must be

favorable to the accused;" 2) "that evidence must have been suppressed by the

State, either willfully or inadvertently;" and 3) "prejudice must have ensued." The

State’s duty to disclose exculpatory evidence is applicable even though there has

been no request by the defendant. Strickler, 527 U.S. at 280. The State also has a

20

duty to learn of any favorable evidence known to individuals acting on the

government's behalf. Id. at 281. "It is irrelevant whether the prosecutor or police

is responsible for the nondisclosure; it is enough that the State itself fails to

disclose." Garcia v. State, 622 So.2d 1325, 1330 (Fla. 1993). "The State is

charged with constructive knowledge and possession of evidence withheld by other

state agents, including law enforcement officers." Jones v. State, 709 So.2d 512,

520 (Fla. 1998).

Here, the prosecutor maintained that "the State of Florida is not Big Brother"

(TS2. 121). He suggested that defense counsel could ask the State witnesses if

they had criminal records. Judge Lebow denied Mr. Duest’s motion saying, "if you

had some reason to believe that a certain witness had a criminal, you know, has

committed some criminal offense and that there’s a record, I will order the State to

give it to you" (TS2. 123). Accordingly, the motion was "[d]enied without

prejudice" (TS2. 124). The prosecutor’s assertion and Judge Lebow’s ruling that

Mr. Duest must first learn a witness’s criminal history from another source before

he can obtain it from the State were simply wrong under Strickler. State v.

Gunsby, 670 So.2d 920, 923 (Fla. 1996)("no question exists that Brady violations

occurred when the State failed to disclose the criminal records of two key

witnesses").

Moreover, defense counsel faced certain obstacles in ascertaining whether

the State’s witnesses had criminal records. As the prosecutor acknowledged, four

of his witnesses were deceased. Accordingly, the State was presenting their 1983

21

testimony, which would be read to the 1998 penalty phase jury (TS2. 122). Judge

Lebow responded that the time to inquire of those four witness about their criminal

records was when they testified in 1983 (TS2. 123). She announced that any

criminal record of the deceased witnesses after their 1983 testimony, "that doesn’t

come in" (TS2. 122). Thus, the State was relieved of any obligation to "learn of [ ]

favorable evidence" that was in the form of a criminal history of its witnesses, and

turn it over. Strickler. This was error.

The State argues that this issue "was not preserved for appellate review as

the trial court denied the motion without prejudice" (Answer Brief at 21). However,

the State’s argument ignores the fact that the judge relieved the State of its

obligation to learn of evidence potentially impeaching its witnesses and to disclose

it, until such time as defense counsel learned of the potential impeachment through

another source. Though the judge stated, "[d]enied without prejudice" (TS2. 124),

she in fact imposed upon defense counsel the burden to learn of the evidence from

another source before she would grant the defense’s motion to compel the State to

ascertain the criminal records of its witnesses and disclose those records to the

defense. The judge’s ruling violated due process. Strickler; Gunsby.

The State suggests that the decision in State v. Wright, 803 So.2d 793 (Fla.

22

arose after the trial judge had granted a defense motion to compel disclosure of

explained:

We further note that the trial court granted the defendants’ motion to

compel disclosure of criminal records of all 100 listed witnesses,

notwithstanding the state’s notification that it only intended to call 30

of those witnesses.

State v. Wright, 803 So.2d at 794.

In the course of quashing the order requiring the State to obtain and disclose

indicated that "the defendants/respondents offered no authority to refute the state’s

claim that it is prohibited from disseminating the NCIC information." Wright, 803

So.2d at 795. However, Mr. Duest does offer such authority: the Supreme Court

decision in Strickler and this Court’s decision in Gunsby. The constitutional

obligation imposed upon a prosecuting attorney trumps statutory and contractual

provisions.

All of the State’s arguments regarding this issue flow from a fundamental

misunderstanding of Mr. Duest’s argument. Mr. Duest argued at resentencing and

in this appeal that he should have been allowed to present evidence challenging the

robbery aggravator. At his original trial, Mr. Duest was convicted only of

premeditated first-degree murder. He was not charged with or convicted of

robbery. At the resentencing, therefore, the State was required to prove the

23

robbery beyond a reasonable doubt. The State sought to meet this burden by

presenting witnesses who identified Mr. Duest as the person who was with the

victim before his death and who had the victim’s property after his death. Mr.

Duest had a state and federal constitutional right to challenge the accuracy of these

witnesses’ identification of him and to present evidence showing he was not

involved in a robbery.

However, according to the State, Mr. Duest "was improperly attempting to

prove that if he was not in Fort Lauderdale at the time of the robbery, then he was

also not guilty of the murder" (Answer Brief at 24-25). Based upon this flawed

premise, the State then argues that Mr. Duest was not entitled to present evidence

challenging the robbery aggravator because such evidence amounted to "improper

lingering doubt evidence" (Answer Brief at 25).

The State’s misunderstanding of the issue first leads it to posit an improper

standard of review for the claim. According to the State, this issue should be

reviewed for an abuse of discretion because "there is no constitutional right to

present ‘lingering doubt’ evidence" (Answer Brief at 25). To the contrary, Mr.

Duest’s claim is based upon his state and federal constitutional rights to

confrontation and to present a defense (See Initial Brief at 68-72). Under Florida

law, an appellate court must independently review mixed questions of law and fact

of constitutional magnitude, giving deference only to the trial court’s factfindings.

Connor v. State, 803 So. 2d 598, 607-08 (Fla. 2001); Stephens v. State, 748 So. 2d

1028, 1032 (Fla. 1999). Since the question of whether Mr. Duest was denied his

24

factual disputes regarding this issue. Thus, this Court must review the

The State’s misunderstanding of the issue next leads it to rely upon

Waterhouse v. State, 596 So. 2d 1008 (Fla. 1992), to argue that Mr. Duest "was

not precluded from arguing that a robbery did not occur, he was only precluded

from presenting evidence to show that he did not commit the murder" (Answer

Brief at 26). The State’s reliance upon Waterhouse is misplaced.

Waterhouse in fact demonstrates that Mr. Duest was denied his rights to

confrontation and to present a defense. At trial, Mr. Waterhouse was convicted of

felony murder, with sexual battery as the underlying felony. Waterhouse v. State,

429 So. 2d 301, 307 (Fla. 1983). On appeal from the resentencing, this Court

stated Mr. Waterhouse was arguing that "the trial court directed a verdict against

him on the issue of the sexual battery by refusing to allow evidence on the issue of

guilt of the murder." Waterhouse, 596 So. 2d at 1015 (emphasis added). The

Court rejected this argument because "Waterhouse was not precluded from

challenging the State’s evidence that a sexual battery occurred or from presenting

evidence that a sexual battery did not occur." Id.

Therefore, unlike Mr. Duest, Mr. Waterhouse had been convicted of felony

murder which included the felony upon which the State sought to base an

aggravating factor at resentencing. Mr. Duest was convicted of premeditated

25

murder, not felony murder, and was not convicted of robbery. Further, even

though Mr. Waterhouse could not challenge his felony murder conviction at

challenge the sexual battery. Under the reasoning of Waterhouse, the resentencing

court erred in precluding Mr. Duest from challenging the robbery aggravator.

The State’s conceptual difficulty with Mr. Duest’s claim probably arises

from the fact that the evidence Mr. Duest sought to present to challenge the

robbery aggravator was also evidence that Mr. Duest was not in Fort Lauderdale at

the time of the murder. If the proffered evidence were of a different kind--for

example, evidence that nothing was taken from the victim--which did not also

implicate the murder, the evidence would obviously be admissible. Waterhouse.

However, the fact that the evidence could be seen as also implicating the murder

conviction does not affect the analysis of the constitutional issue that Mr. Duest

had a right to confront the evidence of robbery and to present a defense to the

robbery.

Mr. Duest was not attempting to present evidence of lingering doubt, but was

simply attempting to challenge the State’s evidence that he committed a robbery.

To prove the robbery, the State presented witnesses who identified Mr. Duest as

the person who was with the victim before his death and who had the victim’s

property after his death. Mr. Duest had a constitutional right to contest these

witnesses’ identification of him through whatever questions he could raise about the

accuracy of their identifications and whatever evidence he could present that he was

26

not involved in a robbery.

Mr. Duest argued in his Initial Brief that the resentencing court erred in failing

to instruct the jury regarding statutory mitigating factors upon which some evidence

had been presented and in giving the jury an instruction on the cold, calculated and

premeditated aggravating factor for which no evidence existed.

As to the court’s failure to instruct on statutory mitigating factors, the State

argues, "Only where a defendant has presented evidence regarding a statutory

mitigator, such as extreme mental or emotional disturbance, should the trial judge

read the applicable instructions to the jury" (Answer Brief at 30, citing Geralds v.

State, 674 So. 2d 96, 101 (Fla. 1996); Bryant v. State, 601 So. 2d 529, 533 (Fla.

1992)). This general proposition of law is correct, but the State then proceeds to

argue essentially that since the statutory mitigators were not proved, the

resentencing court did not err in failing to instruct on them (Answer Brief at 30-34).

This argument is incorrect as a matter of law.

A criminal defendant is "entitled to have the jury instructed on the rules of

instructions." Hooper v. State, 476 So. 2d 1253, 1256 (Fla. 1985) (emphasis

added). In the context of instructions on statutory mitigating factors, "where a

mitigating factors, the trial judge should read the applicable instructions to the jury."

Bryant v. State, 601 So. 2d 529, 533 (Fla. 1992) (footnote omitted) (emphasis

27

added). An instruction "is required on all mitigating circumstances ‘for which

evidence has been presented’ and a request is made." Stewart v. State, 558 So. 2d

416, 420 (Fla. 1990), quoting Fla.Std.Jury Instr. (Crim.) at 80.

The requirement to provide instructions on statutory mitigating factors does

not depend upon whether the factors are proved, as the State’s argument suggests,

this Court held that the trial court should have instructed on the statutory factor of

substantially impaired capacity based upon evidence of the defendant’s alcohol and

drug history, even though the mental health expert testified that the defendant was

not "substantially" impaired. 558 So. 2d at 420 ("Once a reasonable quantum of

evidence is presented showing impaired capacity, it is for the jury to decide whether

it shows "substantial" impairment"). In Bryant, this Court held that the trial court

should have instructed on the statutory factor of extreme mental or emotional

disturbance based upon evidence of the defendant’s longstanding emotional

problems. In Smith v. State, 492 So. 2d 1063, 1067 (Fla. 1986), the Court held

that the trial court erred in failing to instruct on the substantially impaired capacity

and extreme emotional disturbance statutory mitigators because "[t]here was . . .

some evidence, however slight, that Smith had smoked marijuana on the night of

the murder."

In Mr. Duest’s case, the judge’s sentencing order makes clear that there was

"some" evidence supporting the statutory mitigating factors. The judge discussed

this evidence in the sentencing order, but ultimately concluded that the factors were

28

not proved (R2. 396-97). The fact that there was evidence for the judge to discuss

in the sentencing order establishes that there was "some" or "any" evidence

requiring the requested instructions on the statutory mitigating factors.

As to Mr. Duest’s argument that the lower court erred in instructing the jury

on "cold, calculated and premeditated," the State argues that "competent, credible

evidence" supported giving this instruction (Answer Brief at 34-35). This evidence,

according to the State, consisted of "facts show[ing] that Duest deliberately and

repeatedly stabbed Mr. Pope while he lay helpless in his bed without any

justification. Specifically, Dr. Wright testified that Mr. Pope was alive while the

multiple stab wounds were inflicted and he was lying in his bed" (Answer Brief at

35). The only "facts" in this summary are Dr. Wright’s testimony that Mr. Pope

was alive when he was stabbed, that Mr. Pope was stabbed multiple times, and that

Mr. Pope was lying in his bed. None of these facts comes close to supporting an

instruction on "cold, calculated and premeditated," as it has been defined by this

Court. See Jackson v. State, 648 So. 2d 85 (Fla. 1994). Further, the State omits

assailant left. The fact that the assailant left Mr. Pope alive and conscious

forecloses even an inference of any intent to kill, much less the heightened

premeditation required to estabish this aggravator.

The judge’s sentencing order further establishes that there was no record

support for instructing the jury on cold, calculated and premeditated. The

29

aggravator, but simply finds it not established (R2. 396).

The State argues that Omelus v. State, 584 So. 2d 563 (Fla. 1991), does not

support Mr. Duest’s claim that the trial court erred in instructing on cold, calculated

and premeditated because Omelus is factually distinguishable (Answer Brief at 35-

36). However, the principle of Omelus does support Mr. Duest’s claim. That

principle is that a jury should not be instructed upon an aggravating factor for

which there is no record support, as is the situation in Mr. Duest’s case.

Mr. Duest argued that his rights under the Eighth Amendment were violated

when the trial court refused to allow his mental health expert to testify as to her

findings regarding mitigating factors. The State erroneously argues that this issue

should be reviewed for an abuse of discretion (Answer Brief at 36). Because this

State, 803 So. 2d 598, 607-08 (Fla. 2001); Stephens v. State, 748 So. 2d 1028,

1032 (Fla. 1999).

Mr. Duest argued that the trial court failed to conduct an independent

weighing of aggravating and mitigating circumstances when the court gave great

weight to the jury’s death recommendation. The State argues, "This claim is

wholly without merit, as Duest fails to cite to any precedent to support his

argument" (Answer Brief at 42). Mr. Duest continues to rely upon the argument

and citations presented in his Initial Brief.

30

However, the State’s citations point up an inconsistency in this Court’s

caselaw and merit some discussion. The State cites several cases which indicate

that a death recommendation is entitled to great weight (Answer Brief at 42, citing

Grossman v. State, 525 So. 2d 833, 846 (Fla. 1988); King v. State, 623 So. 2d 486,

489 (Fla. 1993); Pangburn v. State, 661 So. 2d 1182, 1188 (Fla. 1995)). Grossman

does say that a death recommendation is entitled to great weight. King says, "even

though a jury determination is entitled to great weight, ‘the judge is required to make

an independent determination, based on the aggravating and mitigating factors."

King, 623 So. 2d at 489, quoting Grossman, 525 So. 2d at 840. Pangburn makes

the generic statement quoted in the Answer Brief. The State also quotes White v.

State, 616 So. 2d 21, 25 (Fla. 1993), as stating that it is illogical for "great weight"

to mean one thing regarding a life recommendation and another thing regarding a

death recommendation. That statement is from the trial court’s sentencing order

and was not made by this Court.

Grossman, King and Pangburn show an inconsistency in the Court’s caselaw

because the Court has also said that trial judges should apply different analyses to

life recommendations and death recommendations (Initial Brief at 92-93, 94). This

Court has reversed a death sentence when the trial court gave "undue weight" to a

jury’s death recommendation. Ross v. State, 386 So. 2d 1191, 1197 (Fla. 1980).

This Court has explained that under Florida’s capital sentencing statute, the trial

judge "determines the sentence to be imposed guided by, but not bound by, the

findings of the jury." State v.Dixon, 283 So. 2d 1, 8 (Fla. 1973).

31

The problem with these various statements regarding how the jury

recommendation factors into the judge’s sentencing decision is that when the judge

is guided by or gives great weight to a jury’s death recommendation, the judge is

not making an independent decision, as is required by the statute. No matter how

much weight a judge gives to a death recommendation, giving a death

recommendation any weight removes the judge’s independent decision-making,

which is contrary to the statute and which is what occurred in Mr. Duest’s case.

Mr. Duest argued under Apprendi v. New Jersey, 530 U.S. 466 (2000), that

his death sentence violates the Sixth Amendment because the elements of capital

murder were not determined by the jury. Since Mr. Duest’s Initial Brief was filed,

the United States Supreme Court decided Ring v. Arizona, 122 S. Ct. 2428 (2002),

holding that Apprendi applies to capital sentencing and overruling Walton v.

Arizona, 497 U.S. 639 (1990). Ring fully supports Mr. Duest’s argument. Since

this Court is presently considering the impact of Ring, Mr. Duest will not more fully

explicate its impact here.

Mr. Duest does take issue with a number of the State’s arguments. The

State argues that Apprendi does not apply to capital sentencing (Answer Brief at

54-55), but Ring has held otherwise. The State argues that a conviction of firstdegree

murder in Florida renders the defendant eligible for a death sentence

(Answer Brief at 55-57). This argument ignores the difference between "form" and

"effect" explained in Apprendi, 530 U.S. at 482-83, and Ring, 122 S. Ct. 2440-41.

32

The dispositive point is that a Florida defendant convicted of first-degree murder is

not eligible for a death sentence until additional findings are made. If sentence were

to be imposed immediately upon conviction of first-degree murder, the only

The State incorrectly argues that Mr. Duest was sentenced under the 1999

version of the capital sentencing statute (Answer Brief at 57-58). Mr. Duest was

required to be and was sentenced under the statute in effect at the time of the crime.

The State argues that Florida’s capital sentencing statute determines death

eligibility at the guilt/innocence phase (Answer Brief at 58-59). The State never

explains what fact is found at the guilt/innocence phase which renders a defendant

eligible for death, but simply asserts the bare argument that this is so. Again, based

simply upon a conviction for first-degree murder, the only sentence which can be

The State argues that Apprendi does not help Mr. Duest because one of the

aggravating factors upon which the trial judge relied was a prior felony conviction

and "is outside any possible reach of the Apprendi decision" (Answer Brief at 60).

The State does not cite to, but is apparently relying upon Almendarez-Torres v.

United States, 523 U.S. 224 (1998). However, Almendarez-Torres does not

survive Apprendi and Ring. See Apprendi, 530 U.S. at 489 & n.15; Id., 530 U.S.

at 520-21 (Thomas, J., concurring). Further, Apprendi specifically restricted

Almendarez-Torres to its "unique facts."

33

For the reasons stated in this brief and in his Initial Brief, Mr. Duest

respectfully urges the Court to vacate his conviction and order a new trial as to

Argument I. As to the remaining arguments, he asks that his death sentence be

vacated and his case remanded for a new sentencing proceeding.

I hereby certify that a true and correct copy of the foregoing Reply Brief has

been furnished by United States Mail, first-class postage prepaid, to Melanie Ann

Dale and Celia A.

34

Terenzio, Assistant Attorneys General, 1515 N. Flagler Drive, Suite 900, West Palm

Beach, Florida 33401, on September __, 2002.

_________________________

MARTIN J. MCCLAIN

Attorney at Law

Florida Bar No. 0754773

497 Stonehouse Rd.

Tallahassee, FL 32301

(305) 984-8344

Counsel for Mr. Duest

I hereby certify that the Reply Brief of Appellant has been reproduced in a 12

point Courier type, a font that is not proportionately spaced.

__________________________

MARTIN J. MCCLAIN