i

Appellant/Cross-Appellee,

v.

Appellee/Cross-Appellant.

ON APPEAL FROM THE CIRCUIT COURT

OF THE ELEVENTH JUDICIAL CIRCUIT FOR DADE COUNTY,

STATE OF FLORIDA

COUNSEL FOR APPELLEE/

CROSS-APPELLANT

ii

This proceeding involves the appeal of portions of the

circuit court’s denial of Mr. Riechmann’s motion for

postconviction relief and the cross-appeal of the circuit court’s

order granting postconviction relief. The motion was brought

pursuant to Fla. R. Crim. P. 3.850. After holding an evidentiary

hearing, the circuit court denied relief on Mr. Riechmann’s

convictions but set aside the sentence of death based on

ineffective assistance of counsel, the state’s misconduct in

withholding exculpatory evidence under Brady v. Maryland and the

trial court’s failure to prepare its own independent sentencing

order.

The following symbols will be used to designate references

to the record in the instant causes:

"R." – record on direct appeal to this Court;

"PC-R."- record on 3.850 appeal to this Court.

This brief is submitted in New Courier typeface in 12 point

type.

iii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF TYPE SIZE AND STYLE . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv

ARGUMENT I

THE LOWER COURT ERRED IN FAILING TO GRANT MR. RIECHMANN A

NEW TRIAL AFTER SETTING ASIDE HIS SENTENCE OF DEATH WHEN IT

FAILED TO USE THE SAME ANALYSIS FOR GUILT PHASE EVIDENCE

THAT IT DID FOR PENALTY PHASE EVIDENCE. . . . . . . . . . 1

ARGUMENT II & III

NEWLY DISCOVERED EVIDENCE AND BRADY CLAIMS . . . . . 20

ARGUMENT VI

INEFFECTIVE ASSISTANCE OF COUNSEL--FEDERAL GUN CHARGES CLAIM

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

ARGUMENT IV

THE LOWER COURT CORRECTLY VACATED MR. RIECHMANN’S DEATH

SENTENCE AND WAS CORRECT IN ORDERING A NEW SENTENCING

HEARING BUT SHOULD HAVE GRANTED A NEW TRIAL.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 37

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 38

iv

Bouie v. State, 559 So. 2d 1113 (Fla. 1990) . . . . . . . . . 31

Brady v. Maryland, 373 U.S. 83 (1963) . ii, 4, 13, 20, 22, 25-27

Card v. State, 497 So.2d 1169 (Fla. 1986) . . . . . . . . . . 12

Farr v. State, 656 So.2d 448 (Fla. 1995) . . . . . . . . . . 37

Glock v. Dugger, 537 So. 2d 99 (Fla. 1989) . . . . . . . . . 12

Grossman v. State, 525 So. 2d 833 (Fla. 1988) . . . . . . . . 31

Gunsby v. State, 670 So.2d 920 (Fla. 1996) . . . . . 32, 33, 37

Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995) . . . . . . . . 33

Koon v. Dugger, 619 So.2d 246 (Fla. 1993) . . . . . . . . . . 36

Kyles v. Whitley, 115 S. Ct. 1555 (1995) . . . . . . . . 21, 27

Layman v. State, 652 So. 2d 373 (Fla. 1995) . . . . . . . . . 31

Patterson v. State, 513 So.2d 1257 (Fla. 1987) . . . . . . 30-32

Provenzano v. Dugger, 561 So.2d 541 (Fla. 1990) . . . . . . . 12

Stewart v. State, 549 So. 2d 171 (Fla. 1989) . . . . . . . . 31

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . 34

U.S. v Lowrey, 15 F. Supp. 2d 1348 (1998) . . . . . . . . . . 18

Valle v. State, 705 So.2d 1331 (Fla. 1997 . . . . . . . . . . 12

18 U.S.C.A. Section 201(c)(2) . . . . . . . . . . . . . . . . 31

Fla. Stat. 921.141 (1985) . . . . . . . ii, 4, 13, 20, 22, 25-27

Rule 4-3.4(b) Florida Rules of Professional Responsibility . 12

v

1

Contrary to the state’s argument in its answer brief, a

defense expert at trial would have contradicted the testimony of

the state’s expert. See, State’s Answer Brief at page 50. Trial

counsel did not retain or investigate the possibility of

obtaining a defense expert on blood forensic evidence even though

he admitted that the blood evidence was the "lynchpin" of the

state’s case.

At the evidentiary hearing, defense counsel, Mr. Carhart,

testified that he considered the blood spatter evidence to be a

"lynch pin" of the state’s case but that he considered the

state’s expert, Mr. Rhodes, to be "benign" until his trial

testimony. He said Rhodes’ importance did not become evident to

him until "...it was showering down on me at trial." (PC-R.5685).

Judge Gold acknowledged that trial counsel’s failure to

counsel should have been aware of this important evidence:

...Admittedly, trial counsel offered no

tactical reason why he did not retain or call an expert

serologist.

***

gunshot residue, Dr. Guinn. It stands to reason that if counsel

had time to retain one expert, he had time to retain an expert on

the pivotal bloodstain evidence.

2

By July 7, 1988, trial counsel was certainly on

notice that Mr. Rhodes’ testimony was a "moving target"

and ultimately problematic. (PC-R. 6036-37)(emphasis

added).

Instead of applying the same principles it used to grant

relief in sentencing, the Court gave a convoluted excuse for why

defense counsel did not investigate or present rebuttal evidence:

Notwithstanding Mr. Potolski’s testimony, the

Defendant has failed to sufficiently meet his burden by

demonstrating that, based on a reasonable probability,

Mr. James, or a similar expert, would have been found

by an ordinary competent attorney using diligent

efforts and that such an expert would have been

prepared to rebut the State’s serologist at trial.

***

Rather, the "reasonable probability" standard must

be measured from trial counsel’s perspective at the

time, without resort to distorting hindsight. No

testimony was offered that, given the time limitations

immediately before trial, Mr. James could have rendered

the same opinions as offered at the post conviction

hearing. (PC-R. 6037-38).

Judge Gold found Stuart James to be credible. The judge

simply questioned Carhart’s ability to retain an expert within

trial counsel did not have time to retain an expert as he did for

the gunshot residue. The record does not show that trial counsel

requested a continuance to get an expert. The Court concluded

that trial counsel’s cross-examination of the witness was

effective in showing the weaknesses in the state’s expert’s

3

testimony. This was an erroneous conclusion because trial

counsel could not know the weaknesses in the state’s case without

obtaining a defense expert.

At the evidentiary hearing, the blood spatter expert, Mr.

James, did testified to matters that the state’s expert failed to

discover during his "investigation." For example, the state’s

blood expert failed to discover that several one dollar bills

were lying on Ms. Kischnik’s leg at the time she was shot (PCR.

3706). This evidence, missed entirely by the state’s blood

expert, corroborated Mr. Riechmann’s story that he and Ms.

Kischnik were lost and going to give some money to the person who

gave them directions out of the neighborhood they had strayed

into.

Mr. Riechmann could not have cross-examined the state’s

expert on this evidence at trial because he did not know it.

Neither the trial court nor the jury knew it. Had defense

counsel taken the time to obtain his own expert he would have

known this information.

The state misrepresents the substance of Mr. James’

testimony at evidentiary hearing. See, State’s Answer Brief at

pages 50-54. The state falsely concludes that Mr. James’ flick

test corroborated the state’s testimony at trial.

The flick test was one of many tests conducted by the

defense expert to contradict the state’s expert testimony. The

4

purpose of the test was to show that there were many possible

causes for the blood spatter to appear as it did that were more

reasonable than the state’s version of the facts. James

eliminated the possibility that the blood specks on the driver’s

door came from exhalation of blood. The distance and the

required angle from Kersten’s nostrils precluded such a

possibility. The flick test was done to show how easily blood

specks could get on the driver’s door from flicking one’s

fingers. This corroborated Mr. Riechmann’s story. Defense

counsel argued that there were other possibilities but could

offer no evidence to back it up.

One of Mr. James’ explanations was that the crime scene had

been tainted by law enforcement and medical personnel on the

scene. James testified that due to the large amount of activity

occurring in the car and that the door opened and closed more

than once, blood could have gotten on the driver’s door any

number of ways (PC-R. 3681-82; 3741-42). There was evidence to

support this claim but it was withheld or not discovered by trial

defense counsel. See, state habeas at page__.

James’ testimony is affected by the Brady material that was

withheld – the crime lab reports and Officer Trujillo’s report

about the height of the passenger window when the shooting

occurred. Defense counsel could not have cross-examined the

state’s witness on the critical discrepancies of this blood and

that he did not present a blood expert because he would have

contradicted his client’s story. He had no knowledge about what

an expert would say because he did not speak to one. Also,

defense counsel supposedly decided at the last moment to call his

client. He had no prior plan to call his client. Therefore, an

expert’s testimony could not have been contradictory at guilt

phase.

5

The state contends that Mr. James’ testimony could not have

been offered by trial defense counsel because it would have

contradicted Mr. Riechmann’s testimony about the angle of Ms.

contradicted by the state’s own brief. See, State’s Answer Brief

at pages 53, 17. Mr. James did not concede that his explanation

of the blood spatter contradicted Mr. Riechmann’s testimony. He

explained that it could not have happened exclusively as the

state’s expert said it did at trial.

Mr. James said that he was certain that the handful of blood

specks found on the driver’s door and window did not come

directly from the shooting. The specks that the state’s expert

contended were made at the time of the shooting had no

significance to whether Mr. Riechmann was in the driver’s seat

(PC-R. 3681-82; 3741-42). In fact, based on the laws of physics

and the entrance wound, Mr. James testified "[I]t does not come

out of the back of the head and go up and out the other

direction. It just doesn’t happen."(PC-R. 3681-82; 3741-42).

6

Mr. James also testified that the state’s "string test" was

completely beyond the scope of current physics (PC-R. 3770).

This testimony would have had a profound effect on the jury’s

ability to judge the credibility of the state’s witness.

Judge Gold did not deny the claim on the basis of the

state’s allegation of contradictory evidence. He denied the

claim on the mistaken belief that trial defense counsel could not

find an expert in time.

Mr. Riechmann offered uncontradicted evidence at the

evidentiary hearing that trial defense counsel placed the time

constraints on himself. Expert witnesses, Georgi and Potolsky

both testified that failure to prepare or investigate the case in

advance was deficient performance. The state offered no evidence

to rebut their testimony. Had defense counsel prepared pretrial,

he would have retained a blood expert as he apparently had

time to do for the gunshot residue. Even Judge Gold acknowledged

that trial defense counsel should have known how important the

state’s blood evidence was going to be (PC-R. 6037).

More importantly, Mr. James testified that he would have

been available to testify at trial. The state has construed his

remark that it would "depend on scheduling" to mean that he was

not available (PC-R. 484). This is not true. Defense counsel

would have scheduled his blood expert just as he did his gunshot

residue expert. It is reasonable that if Dr. Guinn, the gunshot

7

residue expert, could make himself available, that a blood expert

would have done the same. Mr. James did not testify that he was

not available. The state presented no contradictory evidence.

The Court also failed to recognize the significance of the

state withholding a critical police report from the defense that

directly rebutted the testimony of Rhodes. The court held that

defense counsel’s failure to retain a blood spatter expert was

not prejudicial to Mr. Riechmann’s case because trial counsel had

the ability to cross-examine the expert. The court also said

there was no evidence presented that a blood expert could have

been available at trial(PC-R. 6037-38).

Neither of these conclusions address the prejudicial effect

of the uncontradicted expert testimony on the jury. The jury

never heard that Rhodes’ testimony defied the laws of physics;

that his methods were scientifically suspect; that the

conclusions he drew regarding blood droplets on the blanket were

not made at the time of the crime; that Rhodes’ string test

indicated no one point of origin; that Rhodes completely missed

the blood evidence that was present on several one-dollar bills

that were on Kersten’s leg at the time of the crime; and that the

blood spatter evidence on the passenger window indicated that the

window was rolled down significantly lower than he testified to

at trial. Judge Gold’s failure to grant a new trial based on

this omission by counsel in conjunction with others was error and

8

an abuse of discretion.

The state’s argument that Dr. Guinn, the defense expert on

gunshot residue, developed the FBI method of gunshot residue

analysis. Contrary to the state’s argument, Dr. Guinn was not

allowed to testify at trial that he had developed the FBI method

of gunshot residue analysis. The state objected and the

objection was sustained by the court. The state’s argument now

that it was not important is disingenuous. See, State’s Answer

Brief at page 56, n.6. It was certainly important enough for the

state to keep the information of Dr. Guinn’s expertise away from

the jury. It was one in a number of ploys to undermine the

credibility of Dr. Guinn’s authority at trial. That is why the

use of treatises and supporting documentation was so important.

The state suggests the gunshot evidence was not important

and that there was no "battle of the experts" on the gunshot

residue evidence. See, State’s Answer Brief at page 57. However,

this is contrary to the testimony of the state attorney at the

evidentiary hearing (PC-R. 4767).

The state’s expert, Dr.Rao’s, testimony was significant

because he testified that Mr. Riechmann "probably" fired a gun,

based on the number and type of particles found on his hands (R.

perjurer." (PC-R. 5709). However, counsel had no facts to back

up his intuition.

9

evident from the testimony of Raymond Cooper, expert firearms

examiner at the evidentiary hearing, Rao’s opinions flouted

universally accepted norms for gunshot residue analysis:

[T]he only conclusion you can draw from a positive gunshot

residue analysis is that the person either fired the weapon, was

in close proximity of a weapon being fired...or he handled a

recently fired weapon...

(PC-R. 3826). Cooper said there is "absolutely not" a way to

distinguish between those three possibilities. Id. Cooper was

unaware of any study or research that "would allow an expert to

offer the opinion" offered by Rao (PC-R. 3827). Cooper had never

heard of anyone rendering such an opinion (PC-R. 3829).

Cooper challenged Rao’s testimony that the presence of "one

more unique particle which contained all three [trace] elements"

would have enabled him to say to a scientific certainty that Mr.

Riechmann fired a gun. Cooper had never heard of such a thing.

Trial counsel failed to impeach Rao on these unscientific

conclusions or present any evidence that Rao’s conclusions were

false. The jury was forced to accept what the state presented

even though the conclusions defied the FBI standards and the

profession. As evident by this Court’s opinion on direct appeal,

Rao carried the day because of counsel’s failure to investigate

10

and present impeachment or rebuttal evidence.

In his February 22, 1988 deposition, Rao said that Mr.

Riechmann "probably fired a gun." Def. Ex. SSS pp 34-36, 49-50.

Defense counsel contacted his expert two weeks prior to this

deposition but failed to elicit from his expert that the state’s

protocol violated accepted scientific norms.

The jury never knew that FBI professional norms and controls

were not used in the case. Regardless of defense counsel’s

attempts at impeachment, the jury did not know that the

scientific conclusions of Rao were false. Mr. Riechmann offered

expert testimony at the evidentiary hearing that showed that the

most you can say about gunshot residue on the hands of a person

is that the person was "in the vicinity" when a firearm was

discharged (PC-R. 4285). Again, Judge Gold’s finding that crossexamination

by the defense was enough fails to consider that no

hard forensic evidence was presented by the defense to rebut the

state’s expert. The hearing court failed to recognize that crime

lab technicians failed to swab the interior of the car to

ascertain what levels of gunshot residue was in the rest of the

car. Without this information, Mr. Riechmann could not prove

that the residue levels on his hands when swabbed by the Miami

Beach Police Department were consistent with levels elsewhere in

the car.

The state’s suggestion that the jury rejected that Mr.

11

Riechmann’s testimony because he had more residue on his hands

than the victim had on hers is pure speculation. The crime scene

technicians did not even swab the inside of the car. There was

no evidence that Ms. Kischnick had her hands up in a defensive

manner at the time of the shooting. Mr. Riechmann did.

The jury’s ignorance of the fourteen (14) types of guns that

could have fired the fatal shot also was ignored by the hearing

court. The state argues that it did not matter that the state’s

expert, Quirk, testified that only three guns could have fired

the shot instead of fourteen because two of the guns that were on

his list were in the possession of Mr. Riechmann. See, State’s

Answer Brief at page 59. The two guns in the possession of Mr.

The defense expert at the evidentiary hearing proved that the

list of weapons that could have fired the fatal shot was in

existence at the time of the crime. Mr. Quirk’s database was not

more valid because it was located in Miami near the crime scene.

It was an incomplete database. However, it is not the validity

of the Quirk’s database that is the issue. The issue is whether

defense counsel failed to discover the forensic evidence that

would have rebutted the state’s case.

The state’s legal authority of Valle, Provenzano, Card and

Dugger, 561 So.2d 541 (Fla. 1990); Glock v. Dugger, 537 So. 2d 99

(Fla. 1989); Card v. State, 497 So.2d 1169 (Fla. 1986).

tourist, should know who waited on him at a restaurant is

unrealistic. The responsibility for investigating the case lies

with the attorney not the client. See, Farr v. State, Infra.

12

been cumulative. Here, the jury did not know there were 11 other

gun models that could have fired the fatal shot. The jury did

not know that the bullet was one of millions to be manufactured.

It is not cumulative to completely refute the state’s evidence.

At page 84, the state proves Mr. Riechmann’s claim of

ineffectiveness of defense counsel for not seeking out the waiter

who served the couple on the night of the crime. The state

suggests that defense counsel deposed the two officers who took a

statement from the waiter at the Bayside restaurant. The state

suggests that the officers informed defense counsel of who and

where this witness was and the content of their interview. See,

If this is true, then defense counsel should have found the

witness and spoken with him at that time. Instead, the state

claims at page 57 that Mr. Riechmann did not show that "an

earlier investigation would have made the waiter available at

trial." [citations omitted]. See, State’s Answer Brief at page

13

60. It is obvious that earlier investigation was possible unless

the state withheld the evidence. The deficient performance was

either caused by the state’s Brady violation or ineffectiveness

of counsel for failing to discover the witness earlier. For

whatever reason, the information did not reach the jury, and

prejudice is shown.

The state’s erroneously argues that the video of the couple

that night would make the waiter’s testimony cumulative. The

video tape does not show the number of drinks the couple drank,

the general tenor of their conversation, the mood of the couple

minutes before the crime. The waiter’s testimony was critical.

Counsel was ineffective for failing to investigate the case in a

timely manner.

The state also argues that defense counsel could not have

found the newly-discovered eyewitnesses because "he had gotten

59). This is false. Mr. Riechmann could not tell where he had

been. That was plain from the beginning of the investigation.

Any conjecture as to where he came from was from police officers

who guessed where Mr. Riechmann in broken English tried to

describe. To say it was Mr. Riechmann’s fault that defense

counsel only spent 18.7 hours investigating the case is an

incorrect statement of the law and facts.

Counsel made no effort to look for witnesses, even when the

14

police gave their guesses as to where he got lost. Counsel made

no effort to go to a restaurant when he actually knew the

location. Even with the information given by Sgt. Matthews and

Hanlon, defense counsel made no effort to investigate the West

Dixie Highway location or 100 blocks away.

Counsel made no effort to locate witnesses for guilt phase

who could testify about the couple’s relationship. Judge Gold

found that trial counsel’s few phone calls to Germany were

essentially efforts to "raise funds." (PC-R. 5679-81). It was

undisputed that counsel only spent 18.7 hours of investigator

time on the entire capital case. In his opinion, Judge Gold

misunderstood the significance of the German witnesses to guilt

phase. He erroneously found that the substance of their

testimony had "already been presented to the jury." (PC-R. 6049).

This was not true.

The jury heard only from state’s witnesses. Dina Moeller

and the victim’s sister were not going to be favorable to the

defense. They were state witnesses, prepared to testify by the

state. Cross-examination of these witnesses did prove facts

favorable to Mr. Riechmann even though they were readily

available. Judge Solomon acknowledged that these witnesses were

important to the guilt phase (PC-R. 5720).

For example, the alleged motive for the crime was insurance

proceeds from Ms. Kischnik because she could no longer work as a

15

prostitute because of "cervical erosion." The state’s theory was

that Mr. Riechmann depended on Ms. Kischnik for his livelihood.

The defense neither investigated nor presented testimony that

showed that Ms. Kischnik was not ill but suffered from a common

malady that was treatable with antibiotics. At trial this was

only suggested in cross examination. No defense testimony was

presented based the medical records that were available to rebut

the state’s evidence. Medical records from one month before to

the crime show that Ms. Kischnik’s condition was not serious.

The jury did not know that medical records existed that refuted

the state’s theory.

Mr. Riechmann could have proved that he was not dependent on

Ms. Kischnik for his livelihood. Mr. Riechmann could have proved

that prostitution in Germany was perfectly legal and women from

all walks of life practice it as a means of supplementing their

income. The testimony of Doris Dessauer and Ulrike Karpischek go

directly to this issue. The fact that Mr. Riechmann had $25,000

lottery winnings at his disposal was not presented to the jury.

The loving relationship evidence that was available through other

German witnesses would have rebutted the state’s witness, Ms.

Kischnik’s sister, Regina. In fact, the withheld statement from

Kersten’s father, Mr. Kischnik, would have rebutted his own

daughter’s testimony but it was not provided to defense counsel.

The state cannot say that Mr. Kischnik did not have sufficient

16

knowledge of their relationship. Also, defense counsel did not

discover until during the later part of the trial that the

insurance proceeds that were supposedly the motive for the crime

had been charged with murder. The jury also did not know that

the Kischnik family stood to receive all of the insurance

proceeds should Mr. Riechmann be convicted.

The jury also did not know that Ernst Steffen was pressured

to testify favorably for the state by his insurance company

employer and the assistant state attorneys. Had he been called

as a defense witness, he would have testified to the loving, and

good relationship of the couple.

The state’s contention that this evidence had been presented

is wrong. The jury had no evidence for the defense to illustrate

Mr. Riechmann’s relationship. The jury was only presented with

the skewed testimony of the victim’s sister and Dina Moeller’s

inconsistent testimony about a rocky relationship. Cross

examination of the state’s witnesses and counsel’s argument was

insufficient evidence to rebut the state’s case.

Judge Gold found that defense counsel did not seek out the

witnesses who should have been presented at penalty phase.

Defense counsel also did not seek out the witnesses who would

have rebutted the state’s case on guilt. They were the same

people. Judge Gold failed to consider the impact that the 37

17

German witnesses would have had on guilt phase. The two phases

at trial did not have two separate investigations–trial defense

counsel failed to conduct investigation for either phase.

The state concedes that defense counsel had in his

possession a letter from Hans Lohse offering to assist in

rebutting the state’s testimony through jailhouse informant,

Walter Smykowski. See, State’s Answer Brief at page 66 67. Mr.

Lohse would have testified that Smykowski was a liar and out to

curry any favorable deal he could for himself. His testimony

that Mr. Riechmann was "[A]ll day happy because millionaire" was

devastating to the defense. DiGregory testified that his

testimony was crucial and that any reasonably effective defense

lawyer would have investigated Smykowski (PC-R. 5488). Judge

Gold found that defense counsel made a "reasonable" tactical

decision not to call any witnesses. But he came to this

conclusion without the proper analysis under Strickland. A

reasonable tactical decision can only be given deference if it is

the result of adequate preparation and investigation. Defense

counsel never spoke with any of the potential witnesses.

Therefore, he could not have know whether their testimony would

have been helpful.

The state argues that tactical decisions of counsel are

"virtually unchallengable." See, State’s Answer Brief at page

18

67. Under Strickland, the decisions of counsel must be

reasonable. Those decisions are challengeable when they are not

here. He did not even send the investigator out to talk with Mr.

Lohse. Therefore, the tactical decision is unreasonable and

challengeable.

This claim also must be viewed in the context of the newly

discovered evidence of Michael Klopf. Klopf offered testimony at

the evidentiary hearing that Smykowski had a "deal" before he

testified. He also said that Smykowski’s testimony was false and

perjured. See, Rule 4-3.4(b) Florida Rules of Professional

Responsibility; U.S. v Lowrey, 15 F. Supp. 2d 1348 (1998); 18

U.S.C.A. Section 201(c)(2). Defense counsel was rendered

ineffective by the state’s failure to disclose the secret deal in

exchange for testimony. Trial counsel could not impeach

Smykowski on information he did not know.

Judge Gold incorrectly found that defense counsel’s decision

not to use the cellmates of Mr. Riechmann was a tactical

decision. Counsel could not have made a tactical decision if he

did not know what Mr. Lohse would say or what information he had.

Whether or not he would actually call the witness is irrelevant.

The information this man possessed could have lead to other

evidence that could be used to impeach the credibility of the

snitch. Counsel unreasonably failed to undertake the most basic

19

measures on his capital client’s behalf; measures that probably

would have made a difference in the outcome of the case. The

jury never knew that Smykowski was getting a deal because he

specifically said he was not. This was a lie. Defense counsel

could not prove the lie because he failed to talk to Hans Lohse

about the circumstances by which Smykowski testified. This was

deficient performance.

Counsel’s tactic was not to present testimony on Mr.

Riechmann’s behalf because the potential witnesses had prior

convictions. This was ludicrous. Smykowski also had prior

convictions. The only possible evidence to rebut Smykowski would

come from witnesses in jail. The jury should have been the ones

to evaluate the credibility of the witnesses.

Newly-discovered evidence revealed that Smykowski had an

undisclosed deal with the state. After Mr. Riechmann’s trial but

before sentencing, DiGregory sent a letter to the federal parole

authorities requesting "in the strongest possible terms" that

Smykowski be given a reduced sentence on his outstanding charges

(PC-R. 5462). DiGregory audaciously testified that he thought

about writing the letter during trial but did not actually decide

to do it until after the trial was over so he did not feel an

obligation to tell defense counsel (PC-R. 5488).

It was clear, however, that the deal was closed before Mr.

Riechmann was sentenced and three weeks after the trial was over.

20

DiGregory, at least, had a duty to disclose the deal at

sentencing but he never did. The jury was left with the

impression that Smykowski was testifying against Mr. Riechmann

out of the goodness of his heart. The lower court abused its

discretion based on these facts.

The remainder of the state’s argument on guilt phase

ineffective assistance of counsel has been adequately rebutted by

Appellee/Cross-Appellant’s Brief.

Judge Gold ruled in a piecemeal fashion on the Brady

violations. The judge found a Brady violation for the state’s

improperly withholding the 37 German witness statements, but he

made inconsistent rulings on the other Brady material.

The Court finds no Brady violation, except as to certain

exculpatory statements obtained by the German Democratic

Republic Police (PC-R. 6066).

Judge Gold’s order is correct but does not go far enough. It

fails to recognize that the exculpatory evidence applied to guilt

phase as well as penalty phase. Judge Gold held that other

withheld documents contained significant and material facts but

did not present a "reasonable probability" that the outcome of

the trial would have been different.

The only significant information withheld was the

unredacted report of Detective Trujillo which states, "Crime

lab stated that the window had to be all down but subject

21

claimed window as half down for security." While this

statement could have been used to impeach Detective

Trujillo, had he testified inconsistently at trial, the

Defendant did not establish at the post conviction hearing

whether the statement was a mistake of the crime lab or

Trujillo’s report (PC-R. 6067).

Officer Trujillo’s report is exculpatory and impeachment

evidence. The redacted portion reflects that the crime lab

described the passenger window of the rental car had been all the

way down. The state conceded that this information would have

rebutted the state’s gun residue evidence and discredited

serologist Rhodes’ testimony. The information was significant in

that it destroyed the credibility of Rao’s gun residue findings

and the truth of Rhodes’ testimony. This part of Trujillo’s

report corroborates Mr. Riechmann’s story. The impeachment of

Trujillo is ancillary to the impact of the exculpatory evidence.

The lower court recognized its importance but did not grant

relief. The court found that postconviction counsel had to prove

where the mistake occurred–crime lab or Officer Trujillo. This is

incorrect. Postconviction counsel only needed to show that by

some state action defense counsel did not get access to the

redacted information. Who withheld the state’s evidence is

irrelevant. See, Kyles v. Whitley, 115 S. Ct. 1555 (1995).

The state presented no evidence to show that this report was

a mistake, except the speculation of Sreenan who was not the

author of the report nor the lead attorney. DiGregory did not

22

know if he had redacted it or not. Whether the crime lab made a

mistake, Trujillo redacted it or the state kept it out is

irrelevant. What is relevant is that the jury did not get this

information. It was withheld from defense counsel who would have

used it. This information directly rebutted guilt phase

evidence. Judge Gold conceded that this was significant

information. The state also conceded as much (PC-R. 5486). More

importantly, this Court relied on this information on direct

appeal.

In its answer brief, the state suggests that this evidence

was "minor" and may have been contradictory. See, State’s Answer

Brief at page 83. This is not the standard for determining a

Brady violation. Defense counsel should have been given the

opportunity to decide whether to call Trujillo or decide where or

how to use this evidence at trial. He did not have that

opportunity because the state withheld it. There was no question

after the testimony at the evidentiary hearing that DiGregory and

Sreenan did not know who redacted the report but it was clear

that defense counsel did not have it (PC-R. 5486). It also is

clear that the state did not call Trujillo as a witness. This

does not ameliorate the Brady violation as the state suggests.

In addition, the state ignores the sheer number of Brady

violations in this case. The state withheld forensic crime lab

reports which it contends contradict Mr. Riechmann’s version of

23

the window height. This is not true. The withheld crime lab

reports and statements of the crime scene technicians are

contradictory amongst themselves. Some say the window was all of

the way down. Rhodes, the state’s serology expert, says it was

not. All of these reports would have rebutted the state’s case,

but they were withheld. It is not the state’s duty to now argue

that the window evidence is "minor impeachment evidence." It is

the state’s duty to disclose the evidence and the defense

attorney will decide how significant it is. See, State’s Answer

at page 84. The state’s position now contradicts the testimony

of its own state attorneys who admitted at the evidentiary

hearing that the blood evidence and window height was crucial.

Telexes from Miami law enforcement to German authorities

were never disclosed even though defense counsel sought copies of

all communications and Judge Sepe ordered full disclosure. The

state refused to obey Sepe’s order (PC-R. 947-48; 973-75). The

memos to Germany show that false information was used to dupe the

German authorities into cooperating quickly with Florida police.

Defense Exhibits LL through OO demonstrated the lengths to which

the police went to get information. Contrary to the state’s

argument, the defense was never provided all of the telexes. See,

State’s Answer at page 90. The only telexes that counsel had

were those discovered in the State Attorney’s files after direct

appeal. Not all of the telexes were provided to defense counsel.

24

Exculpatory information regarding 35,689 Deutchmark

($25,000) lottery winnings that Mr. Riechmann received the year

before the crime also was not disclosed.

The testimony of Doris Dessauer-Rohr was offered not only to

show that prostitution is a legal profession in Germany but to

show that Mr. Riechmann lived with her for six years and he never

asked nor took any money from her. He lived with her for seven

years and was never a "pimp." Her testimony would have rebutted

the state’s motive for the crime. The state contention that Ms.

Dessauer could not testify because she tried to get Mr. Riechmann

out of a traffic ticket is hardly a significant development.

The state also argues that Office Psaltides’ report

containing Mr. Kischnik, the victim’s father’s exculpatory

statement that he could not say anything bad about Mr. Riechmann,

was not admissible. See, State’s Answer Brief at page 84. This

is a novel argument since it would have been trial defense

counsel’s decision as to whether to present this testimony to

rebut the testimony of Regina Kischnik. Because the state

improperly withheld the statement, defense counsel could not

assess whether to call Mr. Kischnik.

At page 85, the state suggests that Mr. Riechmann should

have known about the information withheld from him that was

seized by the German police regarding his income. Mr. Riechmann

was incarcerated in Miami without any of his personal effects,

25

books or information. His defense attorney failed to investigate

the German aspect of the case except to get more funds. The

burden is on the state to turn over Brady material. Judge Sepe

ordered full discovery. No one could guess as to what the state

had gathered. Mr. Riechmann did not have access to any documents

or files from his home to defend himself. The state’s argument

here is misleading.

The state misled the trial court about the legality of the

searches in Germany (PC-R. 3497-98). This Court relied on these

false representations. Riechmann v. State, 581 So. 2d at 138.

Key evidentiary photos of the interior roof of the car and

trunk have not been found nor provided to defense counsel. Judge

Gold’s order on the photographs defies logic. The state offered

33 photographs in evidence at trial, but none of them show the

interior roof of the car or the trunk. Mr. Riechmann himself sat

at counsel table during trial making notes of the photographs.

Not all of the photographs were provided. The fact that some

photos of the crime scene are missing proves the point. Judge

Gold erred on this point.

Judge Gold also said this Brady claim cannot be raised

"during the[se] post conviction proceedings because it could have

been raised on direct appeal." (PC-R. 6069). This is incorrect.

Appellate counsel did not have access to the state attorney files

that contained many of the unredacted and undisclosed reports. A

26

Brady violation may be raised at any time as the information

becomes known to counsel. Fla. R. Crim. P. 3.850.

At page 85, the state misunderstands the availability of the

37 German witness statements that Judge Gold found were

improperly withheld. At no time has Mr. Riechmann known what was

contained in the 37 statements. The information introduced at

the evidentiary hearing by the seven witnesses from Germany was

not that of the 37 statements because they are allegedly "lost."

They had been in possession of the trial court. They have since

disappeared. The defense was never provided with a list of the

witnesses or access to the statements. Defense counsel

ineffectively failed to renew his request for these documents at

trial.

The sheer number of Brady violations and the state’s blatant

disregard of the discovery order warrant relief. Judge Gold

correctly held that the withheld German witness statements were a

Brady violation. But a Brady violation of this magnitude was

material to all aspects of the trial. These 27 statements, which

Judge Solomon deemed credible, are gone. No one knows the impact

of these statements on guilt phase. No defense attorney has seen

these statements. Therefore, no one representing Mr. Riechmann’s

interests have used them to argue in support of any issue at

trial–-guilt or penalty. Because of the state’s duplicity and

the court’s ex parte contact, defense counsel was foreclosed from

27

investigating the possibility of using these witnesses to

challenge the state’s case. Under Brady v. Maryland, 373 U.S. 83

(1963) and Kyles v. Whitley, 115 S. Ct. 1555 (1995), Mr.

Riechmann is entitled to a new trial.

For the remainder of the newly-discovered evidence and Brady

arguments, Mr. Riechmann relies on his Appellee/Cross-Appellant’s

Brief. The state’s arguments offer nothing that is not rebutted

in Mr. Riechmann’s prior brief.

The state claims that Mr. Riechmann’s assignment of

insurance benefits was a ruse. See, State’s Answer Brief at page

92. This is false and contrary to the record. If this were the

case, then trial defense counsel would not have sought to have

this evidence presented to the jury (PC-R. 4572, 4869-70; 4909-

12).

Trial defense counsel bungled the entire issue. The jury

was left with the impression that Mr. Riechmann was assigning the

benefits because he was about to be arrested. Mr. Klugh’s

testimony at the evidentiary hearing does not reflect when he has

these discussions with his client. Mr. Riechmann assigned the

insurance benefits a month and a half before the December 30,

1987 acquittal on federal charges. The state’s interpretation

of these facts is false.

28

Judge Gold found that the trial judge did not independently

weigh the aggravating and mitigating circumstances in this case

because the order contained "no findings of fact or conclusions

of law." (PC-R. 6070-72). Judge Gold found and the state

concedes that prosecutor DiGregory prepared the order that

sentenced Mr. Riechmann to death.

...Rather, the prosecutor, and not the trial

judge, drafted all findings as required by Section

921.141, Florida Statutes (1985). Neither the ex parte

communication nor the draft order, were disclosed to

defense counsel during any stage of the penalty phase."

(PC-R. 6070-71).

Even though the state in its answer brief uses the word

"proposed" sentencing order, Judge Gold found that the order was

not "proposed" but the final version adopted by the trial court.

At sentencing, the judge read several paragraphs

"findings" as were originally included in the draft

order and then read the last two pages of the

sentencing order as filed in the case. A comparison of

the sentencing order with the draft order reveals that

being the addition of one mitigating factor, namely

that certain persons in Germany believed the Defendant

to be a good person. Other than as stated, the trial

judge did not make his own oral findings in support of

29

the death sentence on the record.

(PC-R. 6070-71) [emphasis added].

circumstances in this case (PC-R. 6072). He also found that the

order was a result of ex parte communications between the trial

judge and DiGregory. The state concedes that ex parte

communication occurred. It is undisputed that neither defense

counsel nor the defendant had an opportunity to read, argue, or

submit its own order for the trial judge’s consideration. The

knowing what the contents of the order were to be. He could only

remember his ex parte contact with the judge and being told to

"prepare an order." (PC-R. 5490).

Contrary to the state’s argument, the deletion of a few

sentences in the order by Judge Solomon does not mean that he

independently weighed the aggravating factors. It means that the

judge read through the order. Judge Solomon said the words were

his but he "can’t remember" actually communicating ten pages of

thoughts to the state attorney. (PC-R. 5725). The rough draft

of the order found in the state attorney’s file was ten pages

long. The final order sentencing Mr. Riechmann to death is ten

pages long.

Under Florida law in 1988, the trial court was compelled to

30

make his own findings of fact. See, Fla. Stat. 921.141 (1985).

The purpose of this statute was to give the Florida Supreme Court

an opportunity to review the legal reasoning behind the

aggravating and mitigating circumstances to insure against

arbitrary and capricious application of the death penalty. See,

Patterson v. State, 513 So.2d 1257, 1261 (Fla. 1987). Here,

this Court reviewed what it thought was the lower court’s

reasoning on the aggravating and mitigating circumstances. But

in fact, it reviewed the state’s findings. See, Appellee/Cross-

Appellant’s Brief at page 98-99. The sentencing order, secretly

written by DiGregory, contained extensive findings on Mr.

Riechmann’s guilt. This is the same DiGregory who admitted

withholding exculpatory police reports, statements, forensic

reports, notes, and photographs despite an order for full

discovery from Judge Sepe.

The state also argues that Mr. Riechmann was not prejudiced

because this Court affirmed the trial judge’s decision on direct

appeal. But that is exactly the prejudice Mr. Riechmann

suffered. This Court did not review Judge Solomon’s order. It

reviewed an order written by the state. This Court was inevitably

influenced by what it thought was the trial court’s detailed

account of the pertinent facts and weighty evidence. In

affirming the conviction and sentence, this Court relied on what

31

it thought were the trial court’s findings. This Court’s

unknowing reliance on a sentencing order written by the State

throws into question Mr. Riechmann’s entire direct appeal. The

result is an unreliable ruling that affirmed the convictions on

direct appeal.

The state also erroneously relies on Patterson to salvage

its argument that the ex parte contact in this case does not

require reversal. This is wrong. Patterson does not condone ex

parte communication with only one party nor does it demonstrate

that Judge Gold abused his discretion when he found that the

trial court erred in having the state prepare a biased,

prosecutorial order. See, Patterson v. State, 513 So. 2d 1257

(Fla. 1997). Cf. Grossman v. State, 525 So. 2d 833 (Fla. 1988);

Stewart v. State, 549 So. 2d 171 (Fla. 1989); Bouie v. State, 559

So. 2d 1113 (Fla. 1990); Card v. State, 652 So. 2d 344 (Fla.

1995); Layman v. State, 652 So. 2d 373 (Fla. 1995).

In Patterson, this Court reversed and remanded for a new

sentencing when it found that "the trial judge improperly

delegated to the state attorney the responsibility to prepare the

sentencing order, because the judge did not, before directing

preparation of the order, independently determine the aggravating

and mitigating circumstances that applied in the case." Infra at

32

Patterson and the 1985 version of Section 921.141 Florida

Statutes was in effect well before Mr. Riechmann was sentenced

These cases placed responsibility for preparing sentencing orders

squarely with the trial judge, not the state. Ex parte contact

was condemned long before 1988.

Even if Patterson did not condemn ex parte contact, the 1985

Florida Statutes in effect in 1988 specifically stated that the

judge was to render his own opinion. See, Section 921.141, Fla.

Stat. (1985). Judge Gold was correct in finding that the trial

court erred in failing to prepare its own sentencing order and

that it prejudiced Mr. Riechmann. In addition, this tainted

order has rendered this Court’s analysis on direct appeal

unreliable. Mr. Riechmann is entitled to a new review of all of

his appellate issues. Thereafter, a new trial should be ordered.

Gunsby v. State, 670 So.2d 920 (Fla. 1996).

The state argues that Mr. Riechmann made a number of

concessions. See, State’s Answer Brief at page 42. Mr. Riechmann

testimony of the witnesses who actually testified at the

evidentiary hearing. The hearing court accepted the affidavits

as evidence of those witnesses who were unavailable to testify.

The state’s objection was overruled. The hearing court

considered the evidence. To suggest some stipulation was

33

required before the court could consider the evidence is wrong

and a misrepresentation of the record.

oversimplified and erroneous recitation of the testimony of the

witnesses from the evidentiary hearing. See, State’s Answer

Brief at page 42. Nor did Judge Gold agree with the assessment

of the state regarding the value of the wealth of mitigating

evidence that counsel did not investigate or prepare.

The Court concludes that trial counsel’s performance at

sentencing was deficient. First, trial counsel failed

to renew or pursue his motion to obtain the German and

Swiss statements which would have provided him with

mitigating evidence to present to the jury. To not do

so vigorously when he lacked any mitigating evidence of

his own was unreasonable and below community standards,

especially where his closing argument contained little,

if anything, of a mitigating nature. (PC-R.4321-22;

4324).

The Court concludes that the Defendant was

prejudiced by his counsel’s failure to present

available mitigation as to his positive character

traits, personal history and family background... With

such evidence presented, there is a reasonable

probability the outcome of the case would have been

different, as against a jury, who without any

mitigating evidence, was already ambivalent about their

recommendation.

Moreover, when the cumulative effect of the

trial’s counsel’s deficiency is viewed in conjunction

with the improper actions of the trial judge and

prosecutor during the penalty phase, the Court is

compelled to find, under the circumstances of this

case, that confidence in the outcome of the Defendant’s

penalty phase has been undermined. See, Gunsby v.

State, supra, 670 So. 2d 920 (cumulative effect of

errors may constitute prejudice), and that the

Defendant has been denied a reliable penalty phase

proceedings. Hildwin v. Dugger, 654 So. 2d 107, 110

34

(Fla. 1995). (PC-R.6076-6079).

Even if the only evidence at the evidentiary hearing was as the

state professes about Mr. Riechmann being a "good person" and

having a "good, loving relationship" with Ms. Kischnik, Judge

Gold found that the outcome of the jury’s decision would have

been different. The state has not demonstrated any abuse of

discretion in the hearing court’s order.

Further, the state disagrees that "the lack of credibility

and import of said testimony has a direct bearing on the

determination of the alleged deficient conduct by trial defense

counsl, not to mention the probability of a different outcome, as

required in Strickland v. Washington, 466 U.S. 668 (1984)[other

citations omitted]." See, State’s Answer Brief at page 43. As

co-sentencer, the jury is a co-fact finder. The jury did not

hear any evidence in mitigation at trial, only the argument of

counsel that the judge instructed them was not evidence.

At the evidentiary hearing, Judge Gold has found that the

witnesses were credible and important and that had their

testimony been presented to the "ambivalent" jury their

recommendation would have been different (PC-R. 6070-72). The

state has not shown that the witnesses were not credible or

important. It contends that "rearguing a ‘good, loving

relationship’ during penalty phase, when the jury obviously found

Defendant murdered the victim for insurance money, is akin to

35

arguing that a defendant who has murdered his parents deserved

mercy because he is an orphan." See, State’s Answer Brief at page

43. This is wrong.

Trial counsel failed to investigate this aspect of the case

hours of investigator time during his entire representation of

Mr. Riechmann. No time was spent investigating his client’s

the good relationship between Mr. Riechmann and Ms. Kischnik or

any other mitigating evidence. The jury only heard crossexamination

of state’s witnesses in guilt phase. It was not

instructed that this cross-examination could be considered as

mitigating evidence. It had no way of knowing what standards to

use in assessing the testimony for statutory or non-statutory

mitigating evidence. They were not instructed on mitigating

evidence until weeks later.

Next, the state suggests that the length of time each one of

the witnesses presented at the evidentiary hearing had known Mr.

Riechmann precluded them from being credible or important

witnesses. See, State’s Answer Brief at pages 44-47. However,

the state ignores the testimony of Doris Dusseau-Rohr who lived

with Mr. Riechmann for seven years (PC-R.3176-77, 3617-18). Even

if the witnesses were casual acquaintances, Mr. Riechmann is

aware of no caselaw that suggests that witnesses must live with

36

the defendant in order to offer credible testimony. In fact, the

jailhouse informant, Smykowski had only a brief encounter with

Mr. Riechmann but the state is certainly not suggesting that he

is not credible.

In fact, the only cases that the state cited as authority

were Koon v. Dugger, 619 So.2d 246 (Fla. 1993) and Mitchell v.

counsel cannot be faulted for following his client’s wishes

regarding background investigation for penalty phase. However,

the distinction between these cases and this one is that the

trial counsel must have "investigated Defendant’s background to

the best of his ability under the circumstances created by the

Defendant." Koon at page 249.

Judge Gold found that trial counsel did no investigation

into Mr. Riechmann’s background, despite the fact that Mr.

Riechmann had given him a list of German witnesses to contact.

The state also ignores that trial counsel did not even renew his

request for the mysterious 37 German witness statements held in

camera by Judge Solomon. Not much effort was required to request

information that was already in the court’s possession.

The state has presented no evidence that Mr. Riechmann in

any manner interfered with trial defense counsel’s investigation.

He only requested that his attorney stay in town because he was

at the mercy of a foreign law enforcement. It was trial

37

counsel’s responsibility to send an investigator to Germany,

request the in camera materials, or take some steps to get

information on his client’s background. Farr v. State, 656 So.2d

448 (Fla. 1995).

The state offers nothing to suggest that Judge Gold abused

his discretion in finding trial defense counsel’s performance

deficient and prejudicial to such a degree that confidence in the

outcome of the trial was undermined.

You don’t just get up there and, you know, ramble

on for ten minutes and hope you get a life sentence.

(PC-R. 4321-24)[Testimony trial expert-Potolsky].

The remaining arguments by the state do not offer any new

information that is not rebutted by Appellee/Cross-Appellant’s

Brief.

For the foregoing reasons, Mr. Riechmann respectfully requests

that this Court affirm the lower court’s order setting aside his

death sentence but reverse the lower court’s order regarding his

conviction. In Gunsby v. State, 670 So.2d 920 (Fla. 1996), this

Court was faced with a similar fact pattern and granted a new

trial.

_________________

TERRI L. BACKHUS

Backhus & Izakowitz, P.A.

Florida Bar No. 0946427

Post Office Box 3294

Tampa, FL 33601-3294

(813) 226-3140

38

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Reply

Brief of Appellant has been furnished by United States Mail,

first class postage prepaid, to all counsel of record on February

1,1999.

__________________

TERRI L. BACKHUS

Florida Bar No. 0946427

Post Office Box 3294

Tampa, FL 33601-3294

(813) 226-3140

Copies furnished to:

Ms. Sandra Jaggard

Assistant Attorney General

Rivergate Plaza–-Suite 950

444 Brickell Avenue

Miami, FL 33131

39