Appellant/Cross-Appellee,

vs.

Appellee/Cross-Appellant.

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida

Assistant Attorney General

Florida Bar No. 0012068

Office of the Attorney General

Rivergate Plaza -- Suite 950

444 Brickell Avenue

Miami, Florida 33131

PH. (305) 377-5441

FAX (305) 377-5654

ii

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . vi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 1

POINT ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . 37

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 39

I.

THE LOWER COURT ERRED IN VACATING DEFENDANT’S SENTENCE. 39

A. THE TRIAL COURT DID INDEPENDENTLY WEIGH THE AGGRAVATING

RETROACTIVELY AND NO PREJUDICE WAS SHOWN FROM THE EX

PARTE CONTACT. . . . . . . . . . . . . . . . . . . 39

B. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO PRESENT THE

INSUBSTANTIAL AMOUNT OF MITIGATION SHOWN AGAINST

DEFENDANT’S WISHES. . . . . . . . . . . . . . . . . 42

II.

THE LOWER COURT PROPERLY DENIED DEFENDANT’S CLAIMS

REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE

GUILT PHASE. . . . . . . . . . . . . . . . . . . . . . . 48

1. Trial counsel was not ineffective for failing to

challenge the blood spatter and gunshot residue evidence.

. . . . . . . . . . . . . . . . . . . . . . . . . 49

2. Counsel was not ineffective for failing to investigate

the facts of the case. . . . . . . . . . . . . . . 59

3. Counsel was not ineffective for failing to investigate

times and distances. . . . . . . . . . . . . . . . 62

4. Counsel was not ineffective for failing to present

evidence regarding Defendant and Ms. Kischnick’s

relationship. . . . . . . . . . . . . . . . . . . . 64

5. Counsel was not ineffective for failing to investigate

Mr. Smykowski. . . . . . . . . . . . . . . . . . . 66

iii

6. Counsel was not ineffective for failing to introduce

Defendant’s exculpatory statement. . . . . . . . . 68

7. Counsel was not ineffective for calling Defendant as a

witness. . . . . . . . . . . . . . . . . . . . . . 69

8. Counsel was not ineffective for failing to request a

second chair. . . . . . . . . . . . . . . . . . . . 71

9. Counsel was not ineffective for failing to present

evidence of cultural differences. . . . . . . . . . 72

10. Counsel was not ineffective for failing to rebut evidence

of the victim’s physical condition. . . . . . . . . 73

III.

THE LOWER COURT PROPERLY DENIED DEFENDANT’S CLAIMS BASED

ON NEWLY DISCOVERED EVIDENCE. . . . . . . . . . . . . . 75

A. THE LOWER COURT PROPERLY REJECTED DEFENDANT’S

NEWLY DISCOVERED "EYEWITNESS" TESTIMONY. . . . . . 75

B. THE LOWER COURT PROPERLY DETERMINED THAT THE

IMPEACHMENT EVIDENCE REGARDING SMYKOWSKI DID

NOT QUALIFY AS NEWLY DISCOVERED EVIDENCE. . . . . . 78

C. THE TRIAL COURT CORRECTLY FOUND THAT EVIDENCE

OF SUBSEQUENT MURDERS DID NOT QUALIFY AS NEWLY

DISCOVERED EVIDENCE. . . . . . . . . . . . . . . . 80

IV.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

V.

THE LOWER COURT PROPERLY REFUSED TO PERMIT DEFENDANT TO

RELITIGATE THE SUPPRESSION ISSUE. . . . . . . . . . . . 90

VI.

THE LOWER COURT PROPERLY DENIED DEFENDANT’S CLAIM THAT

HIS COUNSEL WAS INEFFECTIVE FOR FAILING TO ELICIT THE

FACTS SURROUNDING HIS FEDERAL GUN CHARGES. . . . . . . . 92

VII.

THE LOWER COURT PROPERLY DENIED DEFENDANT’S CLAIM THAT

HIS COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE

STATE’S CLOSING ARGUMENT. . . . . . . . . . . . . . . . 93

iv

VIII.

THE LOWER COURT PROPERLY DENIED THE CLAIM THAT COUNSEL

WAS INEFFECTIVE FOR FAILING TO SEAT AFRICAN AMERICAN

JURORS. . . . . . . . . . . . . . . . . . . . . . . . . 94

IX.

THE LOWER COURT PROPERLY DENIED DEFENDANT’S CLAIM THAT

HIS COUNSEL WAS INEFFECTIVE FOR FAILING TO EFFECTIVELY

CROSS EXAMINE STATE WITNESSES. . . . . . . . . . . . . . 96

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 98

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 98

v

Adams v. Wainwright,

709 F.2d 1443 (11th Cir. 1983) . . . . . . . . . . . . . . 49,67

Armstrong v. State,

642 So. 2d 730 (Fla. 1994) . . . . . . . . . . . . . . . . 41,71

Blanco v. State,

702 So. 2d 1250 (Fla. 1997) . . . . . . . . . . . . . . . 43,76

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . 82

Breedlove v. State,

692 So. 2d 874 (Fla. 1997) . . . . . . . . . . . . . . . . . 54

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) . . . . . . . . . . . . . . . . . 79

Burger v. Kemp,

483 U.S. 776 (1987) . . . . . . . . . . . . . . . . . . . . 67

Card v. Dugger,

911 F.2d 1494 (11th Cir. 1990) . . . . . . . . . . . . . . 53,94

Card v. State,

497 So. 2d 1169 (Fla. 1986), cert. denied,

481 U.S. 1059 (1987) . . . . . . . . . . . 57,58,60,64,69,73,74

Card v. State,

652 So. 2d 344 (Fla. 1995) . . . . . . . . . . . . . . . . . 41

Cave v. State,

529 So. 2d 293 (Fla. 1988) . . . . . . . . . . . . . . . . 61,71

Cherry v. State,

659 So. 2d 1069 (Fla. 1995) . . . . . . . . . . . . . . . . 93

Craig v. State,

510 So. 2d 857 (Fla. 1987), cert. denied,

484 U.S. 1020 (1988) . . . . . . . . . . . . . . . . . . . 93,94

Duren v. Missouri,

439 U.S. 357 (1976) . . . . . . . . . . . . . . . . . . . . 94

vi

Elledge v. Dugger,

823 F.2d 1439 (11th Cir. 1987), cert. denied,

485 U.S. 1014 (1988) . . . . . . . . . . . . . . . . . . 55, 59

Francis v. Barton,

581 So. 2d 583 (Fla.), cert. denied, 501 U.S. 1245 (1991) 85,88,89

Glock v. Dugger,

537 So. 2d 99 (Fla. 1989) . . . . . . . . 57,58,60,64,69,73,74

Groover v. Singletary,

656 So. 2d 424 (Fla. 1995) . . . . . . . . . . . . . . . . . 94

Haliburton v. State,

691 So. 2d 466 (Fla. 1997) . . . . . . . . . . . 49,67,79,87,89

Harvey v. Dugger,

656 So. 2d 1253 (Fla. 1995) . . . . . . . . . . . . . . . . 91

Hildwin v. Dugger,

654 So. 2d 107 (Fla.), cert. denied, 516 U.S. 965 (1995) . . 82

Hill v. Lockhart,

474 U.S. 52 (1985) . . . . . . . . . . . . . . . . . . . . . 49

Holland v. Illinois,

493 U.S. 474 (1990) . . . . . . . . . . . . . . . . . . . . 94

James v. State,

453 So. 2d 786 (Fla.), cert. denied, 469 U.S. 1098 (1984) . 84

Johnson v. Singletary,

647 So. 2d 106 (Fla. 1994) . . . . . . . . . . . . . . . . . 81

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . . . . 76,78

Jones v. State,

709 So. 2d 512 (Fla. 1988) . . . . . . . . . . . . . 43,76,79,81

Koon v. Dugger,

619 So. 2d 246 (Fla. 1993) . . . . . . . . . . . . . . . . . 46

Larkins v. State,

655 So. 2d 95 (Fla. 1995) . . . . . . . . . . . . . . . . . 71

Lockhart v. McCree,

476 U.S. 162 (1986) . . . . . . . . . . . . . . . . . . . . 94

vii

Lowder v. State,

589 So. 2d 933 (Fla. 3d DCA 1991), dismissed,

598 So. 2d 78 (Fla. 1992) . . . . . . . . . . . . . . . . . 81

Medina v. State,

573 So. 2d 293 (Fla. 1990) . . . . . . . . . . . . . . . . 54,91

Melendez v. State,

23 Fla. L Weekly S350 (Fla. Jun. 11, 1998) . . . . . . . . 68,76

Mitchell v. Kemp,

762 F.2d 886 (11th Cir. 1985) . . . . . . . . . . . . . . . 46

Palmes v. Wainwright,

725 F.2d 1511 (11th Cir. 1984) . . . . . . . . . . . . . . 49,67

Parker v. State,

641 So. 2d 369 (Fla. 1994), cert. denied,

513 U.S. 1131 (1995) . . . . . . . . . . . . . . . . . . . 43,76

Patterson v. State,

513 So. 2d 1257 (Fla. 1987) . . . . . . . . . . . . . . . 39,40

Phillips v. State,

608 So. 2d 778 (Fla. 1992), cert. denied,

509 U.S. 908 (1993) . . . . . . . . . . . . . . . . . . . . 88

Provenzano v. Dugger,

561 So. 2d 541 (Fla. 1990) . . . . . . . . 57,58,60,64,69,73,74

Riechmann v. State,

581 So. 2d 133 (Fla. 1991) . . . . . . . . . . . . . 41,42,47,93

Roberts v. State,

568 So. 2d 1255 (Fla.1990) . . . . . . . . . . . . . . . . . 84

Rose v. State,

601 So. 2d 1181 (Fla. 1991) . . . . . . . . . . . . . . . . 41

Rose v. State,

617 So. 2d 291 (Fla. 1993), cert. denied,

501 U.S. 903 (1993) . . . . . . . . . . . . . . . . . . . . 53

Ross v. Oklahoma,

487 U.S. 81 (1988) . . . . . . . . . . . . . . . . . . . . . 95

Routly v. State,

590 So. 2d 397 (Fla. 1991) . . . . . . . . . . . . . . 42,65,96

viii

Shellito v. State,

701 So. 2d 837 (Fla. 1997), cert. denied,

118 S. Ct. 1537 (1998) . . . . . . . . . . . . . . . . . . . 93

Smith v. State,

445 So. 2d 323 (Fla. 1983), cert. denied,

467 U.S. 1220 (1984) . . . . . . . . . . . . . . . . 60,70,72,97

Spencer v. State,

615 So. 2d 688 (Fla. 1993) . . . . . . . . . . . . . . . . . 41

State v. Bolender,

503 So. 2d 1247 (Fla. 1987) . . . . . . . . . . . . . . . . 47

State v. Savino,

567 So. 2d 892 (Fla. 1990) . . . . . . . . . . . . . . . . . 81

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . 43,48,72

Swafford v. Dugger,

569 So. 2d 1264 (Fla. 1990) . . . . . . . . . . . . . . . . 91

Taylor v. Louisiana,

419 U.S. 522 (1975) . . . . . . . . . . . . . . . . . . . . 94

United States v. Teague,

953 F.2d 1525 (11th Cir.), cert. denied, 506 U.S. 842 (1992) 95

Valle v. State,

581 So. 2d 40 (Fla.), cert. denied, 502 U.S. 986 (1991) . . 54

Valle v. State,

705 So. 2d 1331 (Fla. 1997) . . . . . . . 57,58,60,64,69,73,74

Willimson v. Dugger,

651 So. 2d 84 (Fla. 1994), cert. denied,

516 U.S. 850 (1995) . . . . . . . . . . . . . . . . . . . 79,80

1

This brief is written in 12 point Courier New Font. The

parties will be referred to as they stood in the Court below. The

symbol "D.A.R." will refer to the record from the direct appeal,

which includes the trial transcripts. The symbols "R." and "T."

will refer to the record and transcripts from the Rule 3.850

proceeding, respectively. Defendant has designated the point on

appeal as Issue IV. The State has renumbered this as Issue I.

I.

THE COURT BELOW ERRED IN FINDING, AFTER AN EVIDENTIARY

HEARING UNDER RULE 3.850, THAT DEFENDANT’S COUNSEL WAS

INEFFECTIVE DURING THE PENALTY PHASE OF TRIAL, AND THE

COURT ALSO ERRED IN ORDERING A NEW PENALTY-PHASE

PROCEEDING WHERE ALTHOUGH THE PROSECUTOR PREPARED THE

ORIGINAL DRAFT OF THE SENTENCING ORDER, THE TRIAL JUDGE

TESTIFIED THAT HE REVIEWED THE ORDER AND IT REFLECTED HIS

FINDINGS, AND WHERE THE TRIAL JUDGE FURTHER MODIFIED THE

ORDER IN DEFENDANT’S FAVOR.

II.

THE LOWER COURT WAS CORRECT IN FINDING THAT COUNSEL WAS

NOT INEFFECTIVE DURING THE GUILT PHASE BECAUSE THE

EVIDENCE WAS PRESENTED AND COUNSEL MADE STRATEGIC

DECISIONS.

III.

THE LOWER COURT PROPERLY REJECTED DEFENDANT’S NEWLY

DISCOVERED EVIDENCE CLAIM BECAUSE THE WITNESSES WERE

INCREDIBLE, THERE WAS NO UNDISCLOSED DEAL AND THE

EVIDENCE WOULD HAVE BEEN INADMISSIBLE.

IV.

2

BECAUSE DEFENDANT FAILED TO PROVE THAT EVIDENCE WAS

SUPPRESSED, THE EVIDENCE WAS AVAILABLE TO DEFENDANT, THE

ISSUES COULD AND SHOULD HAVE BEEN RAISED ON DIRECT APPEAL

AND THE OUTCOME OF THE PROCEEDING WOULD NOT HAVE BEEN

DIFFERENT.

V.

THE LOWER COURT PROPERLY REFUSED TO PERMIT DEFENDANT TO

RELITIGATE THE SUPPRESSION ISSUE.

VI.

THE LOWER COURT PROPERLY REJECTED THE CLAIM OF

INEFFECTIVENESS RELATED TO THE FEDERAL ACQUITTAL.

VII.

THE LOWER COURT PROPERLY CONCLUDED THAT COUNSEL WAS NOT

INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE’S CLOSING

ARGUMENT.

VIII.

THE LOWER COURT PROPERLY REJECTED THE CLAIM THAT COUNSEL

WAS INEFFECTIVE FOR FAILING TO SEAT AFRICAN AMERICAN

JURORS, WHERE DEFENDANT DID NOT PROVE THAT COUNSEL STRUCK

ANY JUROR HE WANTED SEATED AND THE JURY INCLUDED AFRICAN

AMERICANS.

IX.

THE LOWER COURT PROPERLY REJECTED THE CLAIM THAT COUNSEL

WAS INEFFECTIVE IN CROSS EXAMINING THE STATE’S WITNESSES.

The State relies upon its statement of case and facts

regarding the trial, the direct appeal and the post conviction

claims regarding the sentencing issues contained in its initial

brief in this matter.

On September 30, 1994, Defendant filed a motion to vacate

judgment and sentence pursuant to Fla. R. Crim. P. 3.850, raising

the following guilt phase issues, verbatim:

3

CLAIM I

MR. RIECHMANN WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL BY HIS ATTORNEY’S FAILURE TO

CONDUCT ANY INDEPENDENT INVESTIGATION IN THIS FACTUALLY

COMPLEX CASE AND BY COUNSEL’S CONSEQUENT FAILURE TO

PRESENT ABUNDANT AVAILABLE EVIDENCE OF MR. RIECHMANN’S

INNOCENCE, IN VIOLATION OF MR. RIECHMANN’S RIGHTS UNDER

THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION AND ARTICLE I, SECTIONS 9, 16, 21 AND 22 OF

THE FLORIDA CONSTITUTION.

A. COUNSEL’S FAILURE TO INVESTIGATE THE FACTS AND

CIRCUMSTANCES OF THE ACTUAL OFFENSE AND TO

PROVE MR. RIECHMANN’S INNOCENCE.

1. The failure to find eyewitnesses to

the crime.

2. The failure to ascertain key times

and distances.

3. Descriptions of Mr. Riechmann at the

scene.

4. The failure to present evidence of

similar offenses.

B. COUNSEL’S FAILURE TO INVESTIGATE AND PRESENT

EVIDENCE OF MR. RIECHMANN’S RELATIONSHIP WITH

MS. KISCHNICK.

1. The state’s grossly distorted and

false trial evidence.

2. The wealth of available rebuttal

evidence never sought nor presented.

C. COUNSEL’S FAILURE TO DISCREDIT THE TESTIMONY

OF "JAILHOUSE INFORMANT" WALTER SMYKOWSKI.

D. COUNSEL’S FAILURE TO TRANSCRIBE AND INTRODUCE

THE SECRETLY-RECORDED FOUR-HOUR TAPE OF MR.

RIECHMANN’S OCTOBER 29 INTERVIEW WITH MIAMI

BEACH POLICE SERGEANT MATTHEWS.

1. Documentary proof of the good-faith

efforts of Mr. Riechmann to assist

4

investigators shortly after the

trauma he had undergone, contrasted

with Sgt. Matthews’ arsenal of

tricks and grotesque ploys.

2. Documentary proof of Mr. Riechmann’s

lack of fluency in English, and the

potential for misunderstanding.

3. Proof of Mr. Riechmann’s

bereavement.

4. The revealing "bleed over" comments

from officers in the adjacent room.

E. COUNSEL’S FAILURE TO DEAL EFFECTIVELY WITH A

CLIENT FROM A DIFFERENT CULTURE, TO IDENTIFY

AND EXPLAIN RELEVANT CULTURAL FACTORS TO THE

JURY, AND TO PRESENT EVIDENCE THAT

PROSTITUTION IS A LEGAL REGULATED PROFESSION

IN GERMANY.

F. DEFENSE COUNSEL’S FAILURE TO PRESENT EVIDENCE

REBUTTING THE STATE’S THEORY THAT THIS MURDER

WAS ALL ABOUT MS. KISCHNICK’S "CERVICAL

EROSION."

G. COUNSEL’S UNREASONABLE FAILURE TO PRESENT

OTHER AVAILABLE EVIDENCE OF MR. RIECHMANN’S

INNOCENCE.

CLAIM II

NEWLY DISCOVERED EVIDENCE ENTITLES MR. RIECHMANN TO A NEW

TRIAL.

A. NEWLY DISCOVERED EYEWITNESSES TO THE MURDER OF

KERSTEN KISCHNICK.

B. NEWLY DISCOVERED EVIDENCE THAT THE TESTIMONY

OF "JAILHOUSE INFORMANT" WALTER SMYKOWSKI WAS

KNOWINGLY FALSE.

C. NEWLY DISCOVERED EVIDENCE OF SUBSEQUENT

SIMILAR MURDERS CONFIRMS MR. RIECHMANN’S

ACCOUNT OF THE MURDER OF MS. KISCHNICK.

CLAIM III

5

MR. RIECHMANN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

BY HIS ATTORNEY’S FAILURE TO UTILIZE AVAILABLE EXPERTISE

TO REBUT AND DISPROVE CRUCIAL PROSECUTION TESTIMONY

ERRONEOUSLY AND UNPROFESSIONALLY ASSERTING THAT

BLOODSTAINS AND GUNSHOT RESIDUE EVIDENCE OBTAINED FROM

THE AUTOMOBILE PROVED MR. RIECHMANN WAS GUILTY.

A. THE JURY AND COURTS WERE MISLED BY UNREBUTTED

ERRONEOUS TRIAL TESTIMONY THAT BLOOD STAINS AT

THE CRIME SCENE PROVED MR. RIECHMANN’S ACCOUNT

OF THE SHOOTING WAS UNTRUE.

B. DEFENSE COUNSEL’S UNREASONABLE FAILURE TO

UTILIZE READILY AVAILABLE EXPERT ASSISTANCE TO

DISCREDIT RHODES’ PATENTLY UNPROFESSIONAL

METHODS AND GROSSLY INCORRECT CONCLUSIONS.

C. COUNSEL’S FAILURE TO DISCREDIT THE STATE’S

HIGHLY INCRIMINATING BUT COMPLETELY INVALID

"GUNSHOT RESIDUE" TESTIMONY.

D. COUNSEL’S FAILURE TO UTILIZE AVAILABLE

EXPERTISE TO REBUT INCORRECT AND MISLEADING

FIREARMS AND BULLET EXAMINATION TESTIMONY.

CLAIM IV

THE STATE’S DELIBERATE WITHHOLDING OF MATERIAL

EXCULPATORY EVIDENCE DEPRIVED MR. RIECHMANN OF HIS FAIR

TRIAL RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE I, SECTION 9, 16, 21, AND 22 OF THE FLORIDA

CONSTITUTION.

A. UNDISCLOSED DEALS WITH KEY PROSECUTION WITNESS

WALTER SMYKOWSKI AND THE SUBORNATION OF

SMYKOWSKI’S PERJURED TESTIMONY.

B. THE WITHHOLDING OF PROBATIVE AND EXCULPATORY

PHOTOGRAPHS.

C. THE WITHHOLDING OF POLICE FORENSIC EXAMINER’S

NOTES, WORKUP AND REPORTS.

D. THE WITHHOLDING OF EXCULPATORY POLICE REPORTS.

E. THE WITHHOLDING OF EXCULPATORY GERMAN

6

INVESTIGATIVE MATERIALS AND OTHER DOCUMENTS.

F. THE WITHHOLDING OF MISLEADING CORRESPONDENCE

FROM THE MIAMI BEACH POLICE TO GERMAN

AUTHORITIES.

G. THE STATE MISLED THE COURT AND KNOWINGLY

RECEIVED FALSE TESTIMONY FROM GERMAN POLICE

OFFICERS WENK AND SCHLEITH CONCERNING THEIR

SEARCHES OF MR. RIECHMANN’S AND MS.

KISCHNICK’S APARTMENT IN RHEINFELDEN, GERMANY.

G. THIS COURT’S MID-TRIAL RICHARDSON HEARING

ADDRESSED ONLY A SMALL FRACTION OF THE

DISCOVERY VIOLATIONS HEREIN, AND DID NOT

ADDRESS AT ALL THE BRADY MATERIALS DISCOVERED

ONLY RECENTLY PURSUANT TO MR. RIECHMANN’S POST

CONVICTION PUBLIC RECORDS ACT REQUEST.

CLAIM V

MR. RIECHMANN WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL BY HIS ATTORNEY’S SUDDEN,

UNILATERAL AND PATENTLY UNREASONABLE DECISION THAT MR.

RIECHMANN TESTIFY AT TRIAL, IN VIOLATION OF THE FIFTH,

SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION AND ARTICLE I, SECTION 9, 16, 21, AND 22 OF

THE FLORIDA CONSTITUTION.

CLAIM VI

MR. RIECHMANN WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL BY HIS ATTORNEY’S UNREASONABLE FAILURE TO

SUPPRESS ILLEGALLY OBTAINED EVIDENCE, IN VIOLATION OF MR.

RIECHMANN’S RIGHTS UNDER THE FOURTH, FIFTH, SIXTH, EIGHTH

AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLES I, SECTIONS 9, 16, 21, AND 22 OF THE FLORIDA

CONSTITUTION.

A. THE FRUITS OF THE ILLEGAL HOWARD JOHNSON’S

SEARCH.

B. THE FAILURE TO SUPPRESS ITEMS ILLEGALLY

OBTAINED AND INADMISSIBLE IN GERMANY.

1. The failure to use evidence of

MBPD’s false reports to German

authorities.

7

2. Counsel’s failure to suppress

evidence taken during the illegal

search and seizure of Mr.

Riechmann’s and Ms. Kischnick’s

apartment on January 14, 1998.

3. The failure to suppress "Treffpunkt"

magazine.

4. The failure to suppress inadmissible

incompetent evidence of alleged

"prior convictions" in Germany.

C. THE FAILURE TO SUPPRESS MR. RIECHMANN’S

STATEMENTS.

CLAIM VII

MR. RIECHMANN WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL BY HIS ATTORNEY’S UNREASONABLE

DECISION TO PREVENT THE JURY FROM KNOWING ABOUT MR.

RIECHMANN’S ACQUITTAL OF A FEDERAL GUN CHARGE, IN

VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH,

AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE I, SECTIONS 9, 16, 21, AND 22 OF THE FLORIDA

CONSTITUTION.

CLAIM VIII

MR. RIECHMANN WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL BY HIS ATTORNEY’S FAILURE TO OBJECT TO COUNTLESS

INSTANCES OF FLAGRANT PROSECUTORIAL MISCONDUCT, IN

VIOLATION OF HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH

AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE I, SECTIONS 9, 16, 21, AND 22 OF THE FLORIDA

CONSTITUTION.

A. INFLAMMATORY IMPROPER ATTACKS ON THE DEFENDANT

PERSONALLY.

B. IMPROPER COMMENTS ON THE DEFENDANT’S RIGHT

AGAINST SELF-INCRIMINATION AND RIGHT TO REMAIN

SILENT.

C. MISSTATEMENTS OF THE EVIDENCE AND REFERENCES

TO MATTERS NOT IN EVIDENCE.

D. COMMENTS THAT SHIFTED THE STATE’S BURDEN OF

8

PROOF TO THE DEFENSE.

E. THE STATE’S GROSSLY IMPROPER CLOSING ARGUMENT.

1. Invoking the prosecutor’s opinions

and expertise as to the credibility

of witnesses.

2. Calling the defendant a "liar" and

other improper name-calling.

3. Improper attacks on Mr. Riechmann’s

demeanor and his lifestyle.

4. Improper appeals to the jury to

convict Mr. Riechmann for reasons

other than evidence of his guilt.

F. THE FAILURE TO OBJECT TO INADMISSIBLE HEARSAY,

LEADING QUESTIONS, AND OTHER IMPROPRIETIES.

CLAIM IX

MR. RIECHMANN WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL BY HIS ATTORNEY’S CONDUCT OF JURY SELECTION,

INCLUDING COUNSEL’S DISREGARD OF MR. RIECHMANN’S DESIRE

FOR AFRICAN-AMERICAN REPRESENTATION, . . . , IN VIOLATION

OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE

U.S. CONSTITUTION AND ARTICLE I, SECTIONS 9, 16, 21, AND

22 OF THE FLORIDA CONSTITUTION.

A. COUNSEL’S REFUSAL TO COMPLY WITH MR.

RIECHMANN’S EXPRESSED DESIRE TO SEAT AFRICANAMERICAN

JURORS.

* * * *

CLAIM X

MR. RIECHMANN WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL BY HIS ATTORNEY’S UNREASONABLE ERRORS AND

OMISSIONS ON CROSS EXAMINATION OF THE STATE’S WITNESSES.

* * * *

CLAIM XII

MR. RIECHMANN WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL BY HIS ATTORNEY’S CLOSING ARGUMENT

9

AT THE GUILT PHASE OF TRIAL.

CLAIM XIII

MR. RIECHMANN WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW BY THE

STATE’S FAILURE TO BRING HIM TO SPEEDY TRIAL AND HIS

ATTORNEY’S FAILURE TO DEMAND IT, IN VIOLATION OF THE

CONSTITUTIONS AND LAWS OF THE UNITED STATES AND FLORIDA.

(R. 35, 38, 41, 48, 55, 62, 68, 73, 98, 107, 111, 120, 121, 123,

125, 130, 140, 148, 151, 156, 173, 175, 180, 198, 209, 219, 227,

247, 258, 274, 283, 295, 310, 315, 321, 354, 356, 358, 360, 363,

365, 372, 386, 389, 404, 406, 407, 409, 412, 414, 419, 422, 426,

447, 470, 479). During the evidentiary hearing, Defendant moved to

amend his motion to assert a claim that counsel was ineffective for

failing to have a second attorney appointed, which the lower court

permitted over the State’s objection. (T. 1374-78, 1383)

On November 3, 1995, the post-conviction court granted an

evidentiary hearing as to all of the guilt phase claims except

claim 12. (R. 2146-51, 2154A). With regard to claim 12, Defendant

conceded that no evidentiary hearing was necessary. (T. 103) The

hearing was conducted on May 13-17, June 11, and July 17-19, 1996.

(T. 197).

At the hearing, Monika Seeger, Defendant’s landlady, testified

that she accompanied the German police the first time they searched

Defendant’s apartment in Germany. (T. 266-67) The police did not

have a warrant at that time. (T. 267) The second time the police

came, they had a warrant, and she showed them into the apartment.

10

(T. 267) However, they told her she did not have to stay, and she

left. (T. 267) On the third visit, the German police simply got the

key from Ms. Seeger and entered the apartment alone. (T. 267)

Florida officials accompanied the police on a fourth visit to the

apartment. (T. 268)

Dr. Alexander Brickler, a board certified family doctor who

practices obstetrics and gynecology, testified that he had

extensive experience in delivering babies and taught family

practice residents to manage normal pregnancies and deliver babies.

(T. 358-62) On voir dire, Dr. Brickler conceded that gynecology is

a distinct field from obstetrics.

Dr. Brickler stated that he had reviewed Ms. Kischnick’s

medical records from her German gynecologist regarding treatment on

September 2, 1987 and September 11, 1987. (T. 365-66) The records

reflect that Ms. Kischnick was complaining of generalized abdominal

pain. (T. 366) She was diagnosed with bilateral subacute

salpingitis, an inflammation of the fallopian tubes. (T. 367) Dr.

Brickler stated that this was a type of pelvic inflammatory disease

and that this disease was common. (T. 368) Ms. Kischnick was

prescribed antibiotics and was responding to the treatment at her

second visit. (T. 368-69)

Dr. Brickler also testified that he reviewed Ms. Kischnick’s

autopsy report. (T. 369) The report indicated that the fallopian

tubes were unremarkable and that dark tan discoloration was found

11

on her cervix. (T. 371) Dr. Brickler opined that this confirmed

that she had responded to the treatment. (T. 371) Dr. Brickler also

stated that Ms. Kischnick suffered from cervical erosion, a minor

problem. (T. 373)

Based on these reports, Dr. Brickler opined that Ms. Kischnick

was not seriously ill at the time of her death. (T. 377) He stated

that menstrual cramps or gas could also have caused Ms. Kischnick

to double over in pain. (T. 378)

On cross, Dr. Brickler conceded that Ms. Kischnick’s condition

would cause pain and that different people have different

tolerances for pain. (T. 381) He also admitted that he could not

say how much pain Ms. Kischnick experienced. (T. 381-82) Dr.

Brickler agreed that the prosecutor’s statements in closing that

Ms. Kischnick was treated for inflammation of the fallopian tubes

and had cervical erosion were supported by the records he reviewed.

(T. 380-81)

Stuart James, an expert in blood stain pattern interpretation,

testified that there are three classifications of blood stains, low

velocity, medium velocity and high velocity. (T. 425) Low velocity

stains are produced from blood dripping from a wound and are large

and circular. (T. 425-26) Medium velocity stains are general

produced from beating with a blunt object and are smaller. (T. 427)

High velocity stains are generally produced by gunshot wounds and

are very small. (T. 427) High velocity stains can be described as

12

a mist-like dispersion and are similar to mist produced by aerosol

cans. (T. 427) In practice, the lines between the classifications

are not always clear. (T. 428)

In this case, Mr. James examined the crime scene photographs,

the autopsy report, the police reports, portions of the trial

transcript, the depositions of David Rhodes, the State’s blood

stain expert, and the clothing of the victim and Defendant. (T.

413-20) Based on this evidence, Mr. James opined that the victim

was in the front passenger seat of the car, facing forward, when

she was shot. (T. 440-41)

Mr. James noted that the blood stains in the car were only

subjected to a presumptive test to determine if they were blood.

(T. 430-31) He opined that a negative result clearly demonstrates

that the substance was not blood but that a positive test did not

necessarily mean that the stains were blood. (T. 431-32) Other

substances, such as aloe, could cause a positive test. (T. 431)

Further, the test did not distinguish between human blood and other

kinds of blood. (T. 431-32) As such, Mr. James stated that he would

not have opined that blood was on the blanket without further

testing. (T. 432-33)

Mr. James stated that back spatter is the dispersion of blood

back in the direction of the shooter caused by a bullet entrance

wound. (T. 442) He opined that there was no back spatter in this

case because of the lack of mist-like dispersion. (T. 443) While

13

there were specks of presumptive blood on the passenger’s window,

he did not believe that they were the result of back spatter. (T.

443-44) Mr. James stated that these specks may have come from the

exhalation of blood or from back spatter. (T. 450-52) Because he

could not be sure the blood was back spatter, he could not offer an

opinion regarding the amount of opening in the window. (T. 454-56)

However, he agreed that it was possible that the window was opened

3 and 3/4 inches if the blood was back spatter. (T. 455-56)

Further, Mr. James stated that he did not believe that the

description of the material on the headliner of the passenger

window was consistent with back spatter. (T. 444) He admitted that

he had not seen pictures of this area or the material but stated

that the bullet was of too small a caliber to produce the quantity

of brain matter described. (T. 444-45) Because there was no brain

matter on the window, Ms. James believed that the material on the

headliner was deposited after the gunshot. (T. 445)

Further, he did not believe that the blood on the driver’s

side of the car could have come from back spatter because it was in

front of the wound. (T. 445-46) Mr. James did not believe that the

back spatter could have ricocheted and ended up on the driver’s

door either. (T. 446-47)

Mr. James opined that there was no back spatter on Defendant’s

clothing. (T. 456) However, he did see stains on the right thigh of

the pants that were consistent with exhaled blood. (T. 456-57) As

14

such, Mr. James stated that Defendant had to be in the driver’s

seat when the blood was exhaled. (T. 471)

Mr. James did not believe that the exhalation of blood would

explain the blood on the driver’s door because it was too far from

the victim’s nose, from which most of the blood was exhaled. (T.

457-58) Further, because the blood spots on the driver’s door were

round, Mr. James believed that the blood struck the door at a 90

degree angle. (T. 459-60) One possible explanation of this blood

was that it came from the flicking of blood off of a finger. (T.

460-61) As such, Mr. James disagreed that back spatter or

exhalation of blood were the only possible sources of the blood on

the door and the blanket. (T. 456)

Mr. James admitted that the string convergence test is a valid

test in the field of blood stain analysis. (T. 467-68) However, he

believed that it was misapplied in this case. (T. 468-69) The angle

of impact is supposed to be considered in this test. (T. 468-69)

Assuming a 90 degree impact, the strings would never converge. (T.

468-70) Further, the position of the door at the time the blood was

deposited would affect the test. (T. 470-71)

With regard to the blanket that was in the driver’s seat at

the time, Mr. James stated that it was examined visually and

microscopically, and no blood was found. (T. 472-73) A moist piece

of filter paper was also pressed against the top and bottom of the

blanket, and presumptive blood spatter was found. (T. 473-75) Mr.

15

James opined that the filter paper test was not recognized as a

valid test. (T. 475) He stated that a light wiping of blood may

have left a stain that would appear to be spatter in this test. (T.

475) Further, Mr. James opined that the fact that there was blood

on both the top and bottom of the blanket rendered any conclusion

regarding spatter invalid. (T. 475-76)

Mr. James stated that he believed the blood spatter on the

left leg of the victim’s pants, her purse and three dollar bills

was exhaled blood. (T. 479-80) Because there was blood on the money

but not on the pants under the money, Mr. James opined that the

money was on her leg at the time she exhaled the blood. (T. 480-81)

Mr. James believed that this stain pattern was relevant because it

corroborated Defendant’s statement that Ms. Kischnick was tipping

the person giving them directions when she was shot. (T. 482)

Mr. James stated that no conclusion could be drawn regarding

the location of Defendant at the time of the shooting from the

blood stain pattern. (T. 483-84) The only conclusion Mr. James felt

could be drawn was that Defendant’s pants were in the area of Ms.

Kischnick when she exhaled blood. (T. 484)

Mr. James stated that he presumed experts in the field of

blood stain analysis would have been available "depending upon

scheduling" to provide testimony similar to his in 1988. (T. 484)

Mr. James admitted that 1988 was the year he moved to South

Florida. (T. 484)

16

On cross, Mr. James admitted that Mr. Rhodes had never

testified that the spots were anything other than presumptive blood

and in fact corrected the lawyer on this subject at trial. (T. 488-

94) Further, Mr. Rhodes acknowledged that the presumptive blood on

the blanket might have been other substances or dog’s blood. (T.

494) He also stated that he could not explain the blood on the

bottom of the blanket, that it did not seep through from the top

and that top could have been deposited at another time. (T. 494-97)

Mr. James disagreed with Mr. Rhodes’ testimony that it was

high velocity blood spatter but admitted that the size of the spots

was consistent with that. (T. 498-99) However, Mr. James admitted

that Mr. Rhodes acknowledged Mr. James’ problem with the fibers

breaking up the stains. (T. 499-500)

Mr. James also conceded that Mr. Rhodes had acknowledged that

the blood on Defendant’s pants was exhaled. (T. 501-02) Further,

the use of the term "aspirated" instead of the term "exhaled" was

not significant because it is a common mistake and what was meant

was explained. (T. 501-02)

Additionally, Mr. James acknowledged that Mr. Rhodes stated

that he was unsure how the blood got on the driver’s door. (T. 509-

11) Mr. Rhodes only stated that it was consistent with high

velocity spatter or exhalation of blood. (T. 509) Mr. James

conceded that the phrase "consistent with" indicated that there

were other possible explanations. (T. 507-09)

17

Mr. James stated that his opinion that the string test was

invalid is based on Mr. Rhodes description of the blood spots. (T.

518) Mr. James conceded that directionality of such small blood

spots would be difficult to tell and that Mr. Rhodes had indicated

that one spot showed directionality. (T. 518-21)

Mr. James stated that he did not mean to infer that the blood

on the driver’s door occurred as the result of Defendant flicking

blood off of his fingers while in the driver’s seat. (T. 525) Mr.

James refused to state whether the spots were consistent with

Defendant’s testimony regarding flicking his fingers. (T. 525-27)

Mr. James conceded that Mr. Rhodes was correct that the

passenger window could be opened no more than 3 and 3/4 inches at

the time the blood was deposited on it. (T. 528-31) He also

acknowledged that Mr. Rhodes stated that he could not conclusively

determine the source of this blood and properly stated that the

entire pattern had to be examined to draw a conclusion. (T. 532-34)

Mr. James stated that he did not find Mr. Rhodes’ testimony

"wrong or deceitful." (T. 534) He felt the attorneys overstated the

conclusions from that testimony and that Mr. Rhodes should have

given more examples of other explanations. (T. 534-35)

Mr. James admitted that the blood stains showed that Ms.

Kischnick’s head was on its right side after the shooting, that her

head had to be at least straight ahead, if not turned to the left,

while the seat was not reclined, to explain the blood on her pants

18

and on the left while the seat was reclined. (T. 539-46) He stated

that the lack of exhaled blood on the right side of her body

indicated that her head was to the left as she exhaled blood. (T.

556-57) He acknowledged that Defendant testified that her head was

to the right after the shooting and remained that way through the

time he reclined the seat and the time he left the car to summon

help. (T. 539-46) However, Mr. James refused to admit that this was

inconsistent with Defendant’s testimony. (T. 539-46)

Raymond Cooper, an expert in firearms identification and

gunshot residue analysis, testified that he found a number of

articles regarding gunshot residue analysis. (T. 558-71) Similar

articles would have been available in 1987 and 1988. (T. 572-73)

Mr. Cooper stated that the articles were contained in authoritative

publications. (T. 577-82) The court permitted the introduction of

the articles that were available at the time of trial. (T. 586)

Mr. Cooper agreed with Mr. Quirk’s trial testimony regarding

the type of bullet that was fired and its characteristics. (T. 589)

Mr. Cooper stated that this type of bullet was readily available.

(T. 590) Based on the characteristics, Mr. Cooper opined that the

bullet could have been fired by 9 different models of .38 caliber

weapons and five different models of .357 caliber weapons. (T. 593-

97) Mr. Cooper considered three of these models unusual and the

remainder common. (T. 597-98)

Mr. Cooper also agreed with Mr. Rao’s findings regarding the

19

gunshot residue. (T. 600-01) He stated that these findings were

consistent with a person having either fired a gun, been in close

proximity to a gun when it was fired or handled a recently fired

gun. (T. 602) However, he asserted that there was no way to

distinguish between these three options. (T. 602-03) As such, he

disagreed with Mr. Rao’s conclusion that the evidence showed that

Defendant fired a gun. (T. 605) He stated that being in a car when

a gun is fired in the window on the opposite side is sufficiently

close in proximity to have residue on one’s hands. (T. 616-17)

Mr. Cooper stated that gunshot residue is expelled from the

breach and the muzzle of a weapon when it is fired. (T. 612) The

particles coming from the breach tend to be round, and the

particles coming from the muzzle tend to be irregularly shaped. (T.

612-13)

On cross, Mr. Cooper admitted that some of the gunshot residue

would be blocked by the window and the roof of the car if the

window was partially closed. (T. 617-19) Additionally, the further

the gun was from the window, the smaller the amount residue

entering the car. (T. 619) Ms. Kischnick’s body would also block

some of the particles. (T. 619) The only significance that Mr.

Cooper found to the fact that Ms. Kischnick had fewer particles on

her hand than Defendant had on his was that her hands had to be

away from the shot. (T. 619-20)

Mr. Cooper admitted that the three types of weapons identified

20

by Mr. Quirk were contained within the types of weapons he

identified. (T. 623) He also conceded that Mr. Quirk testified that

his list was not presented as an exclusive list. (T. 622-23) He

also acknowledged that Mr. Quirk had stated that the type of bullet

used was common. (T. 624)

Mr. Cooper stated that he did not know if the database he used

to generate his list of possible types of weapons included all of

these types of weapons in 1987 or 1988. (T. 625-26) Further, Mr.

Quirk relied upon the database of weapons available from the Metro-

Dade Crime Lab. (T. 626-27) Mr. Cooper acknowledged that reliance

on such databases was not uncommon. (T. 627)

Over the State’s relevance objection, Officer Richard Cosner,

from the computer support division of the Miami Police Department,

presented crime statistics broken down by neighborhood for the

northern portion of the city. (T. 636-39) Officer Cosner stated

that these statistics would have been available in 1988. (T. 655)

Karen McElrath, an associate professor of criminology from the

of tourist crimes began in 1991. (T. 659-70) The problem of tourist

crime peaked in 1993, which resulted in a concerted official effort

to reduce it. (T. 677, 679-80) In her research, the first reported

incident of a tourist being shot when asking directions was in

1990. (T. 674-75)

21

On cross, Ms. McElrath testified that she was unaware of the

particular manner of how many of these tourist crime occurred. (T.

688-90) She was unaware of whether any of the tourist crimes did

not involve rental cars. (T. 690) In fact, she admitted that she

had not even read all of the newspaper articles on which she based

her opinion. (T. 690-91)

David Arthur testified that he used the crime statistics to

create a color coded map of Miami. (T. 705-08) He categorized the

level of crime into five levels and used the colors red, pink,

orange, yellow and green to depict these levels. (T. 708-10) The

area in which Defendant now asserts that the crime occurred was

colored pink. (T. 711-12)

Richard Mueller, a private investigator, testified that he

drove from N.E. 63rd Street, starting a half block west of Biscayne

Boulevard, to Indian Creek Drive and 67th Street at 10:15 P.M. on

May 6. (T. 718-20) The distance driven was 5.3 miles, and it took

15 minutes. (T. 722-23) Mr. Mueller estimated that he was delayed

for a minute and a half to two minutes due to construction at the

turn from Biscayne onto the 79th Street Causeway. (T. 723) He also

estimated that Bayside was 50 blocks south of his starting point,

that there were 10 blocks to a mile and that starting at Bayside

would add four miles to the trip.

On cross, Mr. Mueller admitted that he had not explored other

routes. (T. 724) Further, he could not say that his estimate of the

22

time accurately reflected the time the trip would have taken at the

time of the crime because he was unaware of the road conditions

then. (T. 724)

Richard Klugh, an assistant federal public defender,

represented Defendant in his federal case. (T. 728-29) The trial

judge in that case granted a judgment of acquittal on two counts

and the jury acquitted Defendant on the third. (T. 729) Mr. Klugh

believed that the federal charges were brought merely as a way of

detaining Defendant while the police investigated Ms. Kischnick’s

murder. (T. 732-35)

During his representation of Defendant, Mr. Klugh met with

Defendant between 6 and 8 times. (T. 735) Mr. Klugh took three

years of high school German and two years of college German, and

would speak to Defendant in both English and German. (T. 736)

However, he would enlist an interpreter if he had anything of

substance to communicate to Defendant. (T. 736) Mr. Klugh did so

because he wanted to ensure that everything was accurate and felt

Defendant was overly confident in his ability to speak English. (T.

736-38)

Immediately after the acquittal, Mr. Klugh tried to get

Defendant released because he felt that an INS detainer lodged

against Defendant was improper. (T. 739) Simultaneously, Miami

Beach Police were trying to keep Defendant in custody. (T. 739-40)

Eventually, the federal authorities decided to release Defendant

23

from the INS hold, and he was immediately arrested for the murder.

(T. 741-42)

As a result of the detainer, Mr. Klugh continued to represent

Defendant after his acquittal. (T. 741) Mr. Klugh believed Miami

Beach Police were aware of the representation because they had

control of the evidence used in the federal case, and he had

communicated with them regarding it. (T. 740-41) Additionally, Mr.

Klugh informed everyone present at the time of Defendant’s arrest

that he would continue to represent him. (T. 742) Mr. Klugh

asserted that he even went to state court with Defendant until a

state public defender was appointed to represent him. (T. 743)

Mr. Klugh put Mr. Carhart and Defendant in contact, and spoke

to Mr. Carhart about the murder case. (T. 745-46) Additionally, Mr.

Klugh met with Defendant a few times after he was taken into State

custody. (T. 747)

Mr. Klugh had occasion to speak with Defendant regarding the

murder. (T. 747) During this discussions, Mr. Klugh believed that

Defendant displayed an appropriate level of emotion. (T. 757)

During trial, Mr. Carhart called Mr. Klugh and informed him

that he was going to call Defendant to testify. (T. 767-68) Mr.

Carhart requested Mr. Klugh’s assistance in explaining the need for

his testimony and preparing him to do so. (T. 768) Mr. Klugh agreed

to do so. (T. 768) When Defendant was informed, he appeared

shocked. (T. 768) According to Mr. Klugh, Defendant protested and

24

inquired why he had not been prepared in advance. (T. 769-70) Mr.

Klugh stated that Defendant then took the stand after 10 to 15

minutes of discussion without any preparation. (T. 770-71)

Mr. Klugh did not believe that Defendant was prepared to

testify. (T. 774-75) Mr. Klugh did not feel that the use of an

interpreter was sufficiently explored and that the interpreter was

incompetent. (T. 774-75)

In preparing Defendant to testify in federal court, Mr. Klugh

wrote out every question and went over the answer with him. (T.

780-81) Further, evidence regarding the state case was excluded and

the federal authorities were unaware of Defendant’s criminal

history. (T. 781) However, Mr. Klugh never ascertained whether

Defendant had a criminal history at the time of the federal trial.

(T. 783-84)

On cross, Mr. Klugh admitted that he was aware that one of the

jurors had spoken to a reporter about his opinion of whether

Defendant would be convicted. (T. 776) However, he did not recall

that being part of the decision to have Defendant testify. (T. 776-

77) He believed that Defendant was called because of

dissatisfaction with Defendant’s home movie of the day of the

shooting. (T. 777)

Edith Georgi Houlihan, a state assistant public defender,

represented Defendant for a month beginning around New Year’s Day

on 1988. (T. 799-800) During the course of this representation, she

25

met with Defendant several times. (T. 800) Defendant asked Ms.

Georgi to file a motion to preserve the car, which Ms. Georgi

stated she did and which she believed was granted. (T. 800-01)

After Ms. Georgi was replaced as counsel, she continued

following the case, speaking to Mr. Carhart and Defendant and

attending portions of the trial. (T. 802-03) Ms. Georgi stated that

while Defendant’s English was not perfect, he could "certainly get

the point across." (T. 804) She did not believe an interpreter was

necessary and felt that Defendant understood more than he could

express. (T. 804)

Ms. Georgi was amazed that Defendant was called to testify.

(T. 807) She had spoken to both Defendant and Mr. Carhart and been

informed that Defendant would not be. (T. 805) She did not think

Defendant was prepared and believed it was counsel’s decision that

he testify. (T. 807-08) However, she did not observe any portion of

the testimony. (T. 809)

Ms. Georgi opined that Defendant should not have testified

because he was not prepared, the State’s case was circumstantial,

Defendant’s statement was presented by the State and the language

difference would have accounted for the failure to testify, so that

the jury would not have been inclined to hold it against him. (T.

830-32) Further, Defendant’s criminal history should have militated

against his testifying. (T. 832-33)

Ms. Georgi admitted that she was not saying that Defendant

26

should never have been called to the stand. (T. 842) She merely

felt it was unreasonable because it was unplanned. (T. 842-43) She

admitted that trials do not always go as planned but stated that

any major surprise during trial resulted from a lack of

preparation. (T. 834-44) She also conceded that rushing the State

to trial is a valid strategy. (T. 847-48)

Ms. Georgi admitted that she was unaware that Defendant wanted

a speedy trial or whether he had precluded counsel from going to

Germany to investigate his background. (T. 850-51)

Ms. Georgi conceded that cross examination of the State’s

expert may negate the need to call a defense expert. (T. 853)

However, she refused to comment on whether having the State’s

expert admit that he was unsure of his opinion would be effective.

(T. 853-54) She also declined to comment on whether calling a

witness who would contradict Defendant was effective. (T. 854-55)

Hiltrud Brophy testified that she was the official court

reporter in this matter. (T. 868-69) During courtroom proceedings,

she was either at the defense table or next to the witness stand.

(T. 869) Ms. Brophy stated that Defendant was able to speak basic

English at the time of his arraignment. (T. 872-73) During the

course of the proceedings, his English improved. (T. 872-73)

During jury selection, she recalled that Defendant was

extremely interested and preferred to listen to the proceedings in

English, asking for translations of words or phrases. (T. 870)

27

Defendant expressed an interest in having African-Americans on the

jury, and counsel did not agree. (T. 871) Ms. Brophy recalled one

particular juror Defendant wanted, over whom Defendant and counsel

argued. (T. 871) However, she could not remember who the juror was

nor who excluded that juror. (T. 898)

Michael Klopf testified that he was incarcerated at Metro

Correctional Center (MCC) with Walter Smykowski and Defendant. (T.

971-94) Some months later, he and Mr. Smykowski were both

transferred to Eglin Air Force Base. (T. 974-75)

Mr. Klopf testified Mr. Smykowski told him in the spring of

1988 that he had been contacted by the State while at Eglin and

asked if Defendant made any incriminating statements. (T. 975-76,

978) Mr. Klopf stated that Mr. Smykowski had said that he had told

the State that no such statements had been made. (T. 976) According

to Klopf, Smykowski asserted that he had been promised help with

his federal sentence if he testified that Defendant had made an

incriminating statement. (T. 977) Mr. Klopf claimed that he

counseled Mr. Smykowski against testifying and informed him that

the State could not help him with a federal matter. (T. 977) Mr.

Klopf alleged that Mr. Smykowski agreed that he would not testify.

(T. 977-78)

On cross, Mr. Klopf admitted that he had a number of fraud

convictions and had approximately 24 aliases. (T. 981-82) He

admitted that he was not in the same building of MCC with Defendant

28

and Mr. Smykowski when they shared a cell. (T. 982-83)

Mr. Klopf stated that he learned of Mr. Smykowski’s testimony

he did not try to contact anyone about his alleged conversation

with Mr. Smykowski until 1994, when he contacted Mr. Carhart. (T.

971-72)

He claimed that he did not try to contact anyone at the time

because he was afraid of retaliation from prison officials. (T.

990) He asserted that after his initial release in 1990, he

attempted to contact his lawyer so that the lawyer could contact

Mr. Carhart, but the lawyer was on vacation. (T. 990-91) By the

time the lawyer was back, he had become a federal fugitive, which

he remained until his rearrest in 1993. (T. 991) However, he

admitted that he could have spoken to his attorney at the time of

trial or have written an anonymous letter. (T. 991-92)

Hans Lohse, a former federal inmate, testified that Mr.

Smykowski had a reputation for dishonesty. (T. 1760) When he

learned that Mr. Smykowski had testified against Defendant, he had

another inmate write a letter to defense counsel, offering to

testify. (T. 1760,1775-76)

Steven Potolsky, Defendant’s capital litigation "expert,"

testified that competent counsel would have realized that he needed

to confront the State’s experts. (T. 1058-60) To do so, counsel

should have read learned treatises and consulted defense experts.

defense counsel questioned this, Mr. Stitt stated that it was a

male and a female. (T. 1177)

29

(T. 1060-61) Mr. Potolsky felt that counsel should have used

treatises to impeach the State’s experts, as well. (T. 1061)

Additionally, Mr. Potolsky felt that calling defense experts was

necessary. (T. 1065-69)

Mr. Potolsky opined that defendants generally should not be

called to testify in criminal cases, particularly capital cases.

(T. 1086-87) He saw no reason why Defendant was called in this

case. (T. 1089)

Early Stitt testified that in 1983 or 1984 he used to sell

crack cocaine on Biscayne Boulevard. (T. 1173-75) Around 10 p.m.

one night in 1983 or 1984, he was doing so in the area of 63rd

63rd Street and was approached by other drug dealers from the

street. (T. 1776-77) Mr. Stitt heard a gunshot and fled north on

Biscayne. (T. 1177-78) He saw the car pass him as he did so. (T.

1178)

He admitted that his extensive drug use clouded his memory.

(T. 1174) He admitted that Defendant’s investigator had refreshed

his recollection before he testified. (T. 1185-86) In fact,

Defendant’s investigator had coached him regarding the details in

1994. (T. 1186)

He also stated that gunfire was not normal in that area at

30

that time. (T. 1175) He also asserted that he did not want anyone

to know that he had witnessed a shooting and hid for a month as a

result. (T. 1178-79)

Mr. Stitt did not remember seeing Hilton Williams, the other

alleged "eyewitness," that night. (T. 1180-82) However, Mr.

Williams did approach Mr. Stitt in 1994 and inquired if he recalled

it. (T. 1181-82)

He admitted that he had 38 prior convictions and had three to

four aliases. (T. 1186-88) He was also impeached with a prior

statement he gave to the State during the pendency of the post

conviction proceedings in which he stated that the shooting

occurred after midnight. (T. 1191-93)

Mr. Williams testified that in 1986 and 1987 he lived at the

corner of 63rd Street and Biscayne. (T. 1201-03) One night he saw

a red rental car containing a white man and woman come down the

street. (T. 1203-05) The car initially stopped by one group of

people but they could not understand the people in the car. (T.

1204) The car then approached Mr. Williams’ group, which included

Mr. Stitt. (T. 1204-06) One person approached the car, realized the

people in the car did not want drugs, pulled a gun and shot into

the car. (T. 1204) The driver then sped north on Biscayne. (T.

1207)

Mr. Williams had ten prior felony convictions. (T. 1208-09)

Mr. Williams was confronted with the fact that he had stated in his

31

affidavit that his wife was with him that evening. He admitted

that he had changed this portion of his testimony and his testimony

was whatever suited his purposes at the time. (T. 1220-22)

On cross, Mr. Williams stated that he approached the open

driver’s window of the car. (T. 1225) He said that he tried to talk

to Defendant, but he was unable to understand Defendant’s response.

(T. 1229) He asserted that the shots were fired through the

driver’s window. (T. 1231)

He admitted that at the time, he was unwilling to get

involved. (T. 1238) He claimed that he decided to come forward when

Defendant’s investigator contacted him in 1994. (T. 1238-39) He

then brought other alleged witnesses to the investigator. (T. 1241-

42)

He initially denied that he had received any compensation from

the investigator other than two lunches. (T. 1239-40) However, he

admitted under questioning from defense counsel that the

investigator had provided him with a hotel room while he looked for

the other witnesses. (T. 1243)

Richard Ecott, a crime scene technician, testified that he

took crime scene photos in this matter. (T. 1315-18) He used two

rolls of 24 exposure film and took 32 pictures. (T. 1318) George

Traveis, Ecott’s supervisor, whose report Defendant was depending

on to show that more pictures had been taken, testified that he did

not take any photos and that at the time he filed his report, he

32

did not know how many pictures Ecott had taken. (T. 1330-32) As

such, his report only indicates the number of exposures, not the

number of pictures. (T. 1332)

Fleata Douglas, another crime scene technician, testified that

she did not know how many photos she took, that she had testified

at trial that she had taken 4 to 5 rolls of 24 to 36 exposure film,

and that she did not know whether she took complete rolls. (T.

1342-46) Another crime scene technician, Lydia Shows, testified

that she took one roll of 36 exposure film but did not know if she

used the complete roll. (T. 1350-51)

Beth Sreenan, one of the prosecutors in this matter, testified

that defense counsel had originally not planned to depose the

State’s witnesses from Germany, despite having deposed every other

State witness, because Defendant did not want counsel to go to

Germany. (T. 1421) In fact Defendant personally waived his right to

have these witnesses deposed. (T. 1422) However, defense counsel

did depose these witnesses after the State brought them to the

United States for trial, which resulted in a continuance. (T. 1422-

23) During these depositions, Defendant was present, corrected the

interpreter and appeared to act as co-counsel. (T. 1428-29)

Ms. Sreenan went to the scene on the night of the crime. (T.

1412-13) She observed Defendant expressing dislike for African-

Americans. (T. 1436) She informed defense counsel of these remarks

and of other racist remarks Defendant had made. (T. 1443-46) Based

Boulevard and got lost in the area of West Dixie Highway. (T. 1455)

33

on these conversations, defense counsel moved to exclude evidence

of Defendant’s statement, which the State had planned to elicit to

show that Defendant would not have asked a black man for

directions. (T. 1446-47)

She stated that she had directed an investigation of the route

from Bayside to the site where the car stopped, using the 125th

Street, the 163rd Street, the 41st Street and the 79th Street

Causeways, on a Sunday evening, the same day of week on which the

murder occurred. (T. 1457-58) They were able to reach the scene

within 35 minutes under all of these scenarios and communicated

this information to defense counsel. (T. 1458)

Ms. Sreenan stated that this matter was tried very quickly at

Defendant’s insistence, which resulted in the State being limited

in its investigation of the case. (T. 1459-60) Based on her

discussions with Defendant and defense counsel, she believed that

this was a strategic decision and in accordance with Defendant’s

wishes. (T. 1460-61)

Ms. Sreenan stated that Smykowski contacted the State

regarding his testimony. (T. 1465) She stated that Smykowski was

threatened with prosecution if he lied and was not promised

anything if he told the truth. (T. 1466) She believed that

34

Smykowski was truthful because he knew details about Defendant that

had not been publicized. (T. 1467-69)

Ms. Sreenan stated that she only became aware that a German

court had ordered suppression after the 3.850 motion was filed. (T.

1479) As such, this order did not enter into the State’s decision

not to introduce the fruit of the second search in Germany. (T.

1479)

She believed that all of the police reports were provided and

did not recall whiting out any portions. (T. 1511-13) She did

recall that the police had written one report on the

inconsistencies in Defendant’s statement and that author was not

correct regarding the physical evidence in that report. (T. 1514-

15)

Thomas Quirk, the State’s firearm examiner, testified that the

list of firearms produced by Mr. Cooper included several firearms

with rifling characteristics that were not entirely consistent with

the bullet from the victim. (T. 1562-67) Further, some of the guns

on the Cooper list may not have been produced until after the

crime. (T. 1572)

Mr. Carhart, Defendant’s trial counsel, testified that he

discussed jury selection with Defendant. (T. 1623) However, Mr.

Carhart selected the jury. (T. 1623) He did recall that Defendant

wanted African-Americans on the jury. (T. 1639-40) However, Mr.

Carhart was concerned that the fact that Defendant alleged that an

35

African-American was the killer might elicit an adverse reaction

from such jurors. (T. 1639-40) Further, black jurors were chosen.

(T. 1641)

Mr. Carhart admitted that he was informed of the names of

individuals interviewed by the German police and the content of

their statements. (T. 1642-45) He also contacted Defendant’s family

in Germany. (T. 1651-52) However, he did not believe they were

available to help Defendant. (T. 1652)

He did not hire a blood spatter expert because he considered

Mr. Rhodes’ testimony benign at first. (T. 1626) Because Mr. Rhodes

had only reported presumptive blood, Mr. Carhart focused on

demonstrating the way the blanket could have became contaminated.

(T. 1627-29) Further he did not know that blood spatter expert

testimony was available. (T. 1691)

Mr. Carhart attempted to find the scene of the crime and

employed an investigator to look for it. (T. 1629-31) However, he

could not because Defendant was unable to provide sufficient

information about the location. (T. 1630)

Mr. Carhart stated that Defendant’s version of events was that

he drove north on Biscayne Boulevard, planning to go over the Julia

Tuttle Causeway. (T. 1657-58, D.A.R. 3242-44) When he reached 163rd

Street, he realized that he had gone too far and tried to get back

via West Dixie Highway. (T. 1658-59, D.A.R. 3242-45)

The investigator also looked for the waiter who had served

36

Defendant and Ms. Kischnick shortly before the crime. (T. 1633)

However, he had left the restaurant and moved. (T. 1633) Because

the State did not dispute Defendant’s version of what occurred at

the restaurant, Mr. Carhart felt the matter was less relevant. (T.

1676-77)

Mr. Carhart decided that Defendant should be advised to

testify after he learned that one of the jurors had allegedly told

a journalism student that the other jurors thought Defendant was

guilty. (T. 1634-35) He also considered the atmosphere in the

courtroom and how he felt trial had gone in making this decision.

(T. 1635-36)

Mr. Carhart did receive a letter from an inmate regarding Mr.

Smykowski’s veracity. (T. 1637-38) He discussed it with Defendant

and chose not to call the witness because of his criminal record.

(T. 1637-39) Further, he spoke to Defendant about other witnesses

who might provide testimony regarding Mr. Smykowski. (T. 1690) He

chose not to call these witnesses because Smykowski’s reasons for

testifying were obvious and these witnesses were not present when

Defendant spoke to Smykowski. (T. 1711)

Kevin Digregory, the lead prosecutor in this matter, testified

that all of the crime scene photographs were provided to the

defense. (T. 1795-1800)

He stated that Mr. Smykowski’s intermediary requested that

Janet Reno contact the federal magistrate and asked that he be

37

allowed to remain. (T. 1801-02) However, Mr. Digregory did not

speak to Ms. Reno. (T. 1802) He did not recall Smykowski asking for

anything or being promised anything in exchange for his testimony.

(T. 1803)

After oral and written argument of counsel, (T. 1895-1958, R.

5883-5999, 6000-6024), the post-conviction court entered an

exhaustive, 56-page order on November 4, 1996, rejecting

Defendant’s claims as to the guilt phase and re-affirming

Defendant’s conviction. (R. 6025-71).

The lower court erred in vacating Defendant’s sentence. The

trial court did independently weigh the aggravating and mitigating

circumstances. Further, there was no prejudice from the ex parte

contact with the prosecutor.

Counsel was not ineffective during the penalty phase. Counsel

did investigate Defendant’s background, which revealed nothing

helpful. Defendant did not want counsel to do further investigation

or present any mitigation. Further, a jury who had just found that

Defendant murdered the victim for money would not be terribly

impressed with testimony that they had a good relationship from

people who barely knew them. Evidence that Defendant was a good

person would not have affected the outcome either, as it was

previously considered by the trial judge, who independently

38

concluded that it was "far outweighed" by the aggravators.

The lower court properly rejected Defendant’s claim that his

counsel was ineffective with regard to the State’s experts. The

points Defendant says should have been elicited were elicited at

trial.

Trial counsel was also not ineffective with regard to the

investigation or presentation of the factual witnesses. The

evidence was present at trial.

The lower court properly rejected the claims of newly

discovered evidence. The evidence was incredible, cumulative

impeachment and inadmissible.

nonexistent, and known to Defendant. Further, some of these issues

were raised on direct appeal and could and should have been raised

on direct appeal.

The suppression issue was raised on direct appeal. The lower

court properly determined that it could not be relitigated here.

The acquittal on the federal gun charges was irrelevant and

did not show that Defendant had no ulterior motives in assigning

the insurance benefits or making statements.

The issue of the propriety of the State’s comments was already

litigated. Further, the record reflects that Defendant was a liar,

so there was no impropriety in calling him one.

Defendant does not have a right to a fair cross section on his

39

petit jury. Further, he did not show that counsel struck any of

the jurors he wanted seated, and African Americans sat. Defendant

also failed to show that his counsel was ineffective in the manner

in which he cross examined the State’s witnesses.

On the State’s appeal, Defendant contends that the trial

judge’s sentence was not independent. The evidence, however,

reflects that the weighing process and the sentence were in

1257 (Fla. 1987), which was applicable at the time of Defendant’s

1988 sentencing.

As noted in the State’s initial brief, the prosecutor prepared

a proposed sentencing order including the same two (2) aggravators

(pecuniary gain and CCP), that he had previously argued to the

judge and jury in the presence of the defendant and defense

counsel. The trial judge, nonetheless modified the proposed

aggravators, substantially revising the findings on CCP, by

deleting two paragraphs thereon in the proposed order. Moreover,

below was to the same effect as will be seen in the ensuing section

B of this argument.

40

the proposed order did not include any mitigating factors. The

trial judge, however, again revised the proposed order and found

that a mitigating factor - the defendant having been "a good

the affiants had testified. Having found this mitigating factor,

the sentencing judge then independently concluded that, "[t]he

aggravating circumstances far outweigh the non-statutory mitigating

circumstance." (R. 2261) This language, too, was not contained in

the proposed order prepared by the prosecutor; as noted, the

R. 2272. Finally, the judge announced the sentence and the

sentencing order was entered after a hearing where the defense was

allowed an opportunity for both argument and presentation of

evidence. (D.A.R. 5309)

The above historical evidence derived from the differences in

language between the proposed order and the final order, both of

which were in existence since the time of the 1988 sentencing,

demonstrates that the critical "weighting process" at issue in

513 So. 2d at 1262. The above evidence of independent sentence and

weighing process was further corroborated by the sentencing judge’s

testimony at the evidentiary hearing below. The judge testified

41

that the sentencing order reflected his own conclusions and

findings. (T. 1724-25) The record thus unequivocally reflects that

As to the ex-parte contacts between the judge and prosecutor,

progeny. Said cases, however, were decided after the 1988

Court has specifically held that such ex parte contacts do not

"automatically" entitle a defendant to a resentencing in cases such

be demonstrated.

In the instant case, no prejudice has been shown. The two

aggravating factors found were the same as those previously argued

by the prosecutor before the judge and jury, in the presence of the

defense. The existence of these aggravating factors was not

disputed before the jury or judge, or on direct appeal, nor,

indeed, in these post-conviction proceedings. Moreover, this

Court, on direct appeal, found said aggravators to have been proven

1991)("We find the evidence clearly sufficient to support the

aggravating factors applied."). Furthermore, as noted above, the

42

sentencing judge independently concluded that the aggravating

circumstances "far outweigh" the nonstatutory mitigating evidence.

On direct appeal, this Court, affirmed and approved this

trial court’s conclusion that ‘[t]he aggravating circumstances far

outweigh the nonstatutory mitigating circumstances.’"). No

prejudice has been demonstrated. The State thus respectfully

submits that the lower court’s grant of resentencing before a new

With respect to the ineffective assistance of counsel at the

penalty phase claim , Defendant apparently concedes that the only

proper evidence at issue herein is the testimony of the witnesses

who actually testified at the evidentiary hearing below. As noted

in the State’s initial brief, the affidavits presented in the court

below cannot be relied upon because the parties did not stipulate

disputed this. It is further undisputed that, at best, the

testimony from the actual witnesses at the evidentiary hearing was

to establish: 1) Defendant had a "good, loving relationship" with

the victim, and, 2) Defendant was a "good person." The State, in

43

its initial brief, detailed the witnesses’ lack of knowledge of the

relationship between Defendant and victim, and the damaging

information disclosed by some of them. Defendant, however,

contends that the credibility and import of these witnesses’

testimony was a matter for the sentencing jury to decide

(Appellee/Cross-Appellant’s Brief at p. 104) The State disagrees

and respectfully submits 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 counsel, not to mention

First, with respect to the defendant and victim having had a

"good relationship," defense counsel, during the guilt phase of the

trial, presented such evidence and argued it during his closing

argument. The jury rejected this and found Defendant guilty of the

premeditated murder of the victim. The State respectfully submits

that rearguing a "good, loving relationship" during the penalty

phase, when the jury had obviously found Defendant murdered the

victim for insurance money, is akin to arguing that a defendant who

has murdered his parents deserved mercy because he is an orphan.

Trial counsel cannot be deemed deficient for not having reargued a

44

good, loving relationship during the penalty phase.

Moreover, the post-conviction testimony presented reflects

that none of the witnesses presented had a reasonable knowledge of

the "relationship" between Defendant and victim. None of these

witnesses knew that Defendant was the victim’s pimp. The majority

of the witnesses had never even spoken with the victim so as to be

in a position to assess any relationship. As noted in the State’s

initial brief, two of these witnesses, Defendant’s landladies,

testified that the extent of their knowledge of Defendant was from

conversations which occurred when he would pay his rent. Neither

of these witnesses had even spoken with the victim. Likewise,

Defendant’s two ex-girlfriends (one of whom was a prostitute and

had previously been convicted of committing perjury on Defendant’s

behalf), had never spoken with the victim nor even observed

Defendant and victim together. Defendant’s friend, Mr. Walitzki,

testified that he did not know much about the victim and was

unaware that she was a prostitute. Indeed, this witness testified

that he had allowed Defendant to live with him when the victim and

Defendant were separated due to unspecified difficulties in their

relationship. Finally, the last two witnesses, Defendant’s

hairdresser and the latter’s wife, testified that their knowledge

of the relationship was based upon observing the victim and

defendant together when the defendant would pick up the victim at

the salon after she had her hair done; these observations were in

45

the context of also observing 2,500 other regular customers during

the course of their business. The State respectfully submits that

trial counsel’s conduct in not presenting additional evidence of a

"good relationship" through the above post-conviction witnesses was

not deficient, and such testimony did not reasonably affect the

With respect to Defendant-was-a-"good person" testimony by the

above post-conviction witnesses, the State again submits that the

witnesses’ lack of in-depth knowledge about Defendant’s character

demonstrates that trial counsel’s conduct was not deficient.

Moreover, as detailed in the State’s initial brief, testimony as to

Defendant’s character opened the door to emphasis on the damaging

information as to Defendant’s prior extensive history of crime and

fraud. Trial counsel’s conduct must also be assessed in light of

the circumstances of the 1988 sentencing. At the time, Defendant,

who had actively participated in all aspects of his defense, was

adamant in maintaining his innocence even after conviction and

through the penalty phase. (D.A.R. 5288) Indeed, Defendant was

willing to altogether waive the jury sentencing recommendation.

(D.A.R. 570) Defense counsel nonetheless investigated Defendant’s

background prior to following his client’s wishes not to present

any evidence at the penalty phase. At the evidentiary hearing,

trial counsel testified that he had contacted Defendant’s family

members. When asked if they had provided any helpful information,

Brief at 103, is contrary to the only testimony presented on this

issue.

46

trial counsel responded, "they were not really available to me."

(T. 1652) Trial counsel’s testimony below is borne out by the fact

that, despite an opportunity for a period of several years after

Defendant’s conviction and sentence, post-conviction counsel was

also unable to produce a single family member from Defendant’s

rather large family at the evidentiary hearing. Trial counsel also

testified that Defendant had never expressed any desire to call the

Moreover, every one of the witnesses testified that, although they

were in contact with Defendant during the 1988 trial, Defendant had

never asked them to testify on his behalf. Trial counsel cannot be

faulted for following his client’s wishes after having investigated

Defendant’s background to the best of his ability under the

Cir. 1985).

Most importantly, the "good person" testimony presented below

does not demonstrate any probability of change in the outcome of

the 1988 sentencing. The above witnesses’ testimony as to

Defendant being a "good person" was presented to the trial judge,

through affidavits and minus the attendant damaging information

47

elicited at the evidentiary hearing, at the 1988 sentencing. The

trial judge accepted the "good person" evidence as a nonstatutory

mitigating circumstance. As noted previously, however, the trial

judge independently concluded that the aggravating circumstances

"far outweigh" the "good person" mitigation. This Court, on direct

141. It is thus abundantly clear that no prejudice has been

demonstrated.

The State recognizes that the lower court stated that the

testimony at issue would have changed the outcome, as the

sentencing jury was "ambivalent" about their recommendation based

upon their numerical vote for the death penalty. The 1988

sentencing record, however, does not bear out any ambivalence; the

jury recommended death by a vote of 9 to 3. Moreover, even in a

jury override case, the mere presentation of "good person"

testimony at a post-conviction hearing does not provide a

503 So. 2d 1247, 1249 (Fla. 1987) ("That the mere presentation of

mitigating evidence [good person testimony that had not been

presented at the original sentencing] precludes imposition of the

death penalty is not and never has been a correct statement of this

state’s law."). The State thus respectfully submits that the lower

court erroneously substituted its opinion for that of the original

sentencer and this Court.

48

Defendant asserts that the trial court erred in denying his

claims of ineffective assistance of counsel at the guilt phase. In

Supreme Court announced the standard under which claims of

ineffective assistance must be evaluated. A defendant must

demonstrate both that counsel's performance was deficient, and that

the deficient performance prejudiced the defense, which requires a

showing that counsel's errors were so serious as to deprive the

defendant of a trial whose result is reliable.

Deficient performance requires a showing that counsel's

representation fell below an objective standard of reasonableness

under prevailing professional norms, and a fair assessment of

performance of a criminal defense attorney:

requires that every effort be made to

eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the

conduct from counsel's perspective at the

time. . . . [A] court must indulge a strong

presumption that criminal defense counsel's

conduct falls within the wide range of

reasonable professional assistance, that is,

the defendant must overcome the presumption

that, under the circumstances, the challenged

action might be considered sound trial

strategy.

49

Further, strategic choices made by a criminal defense counsel

after thorough investigation of law and facts relevant to plausible

options are "virtually unchallengeable." They may only be

overturned if they were "so patently unreasonable that no competent

1445 (11th Cir. 1983))).

Even if a criminal defendant shows that particular errors of

defense counsel were unreasonable, the defendant must show that

they actually had an adverse effect on the defense in order to

establish ineffective assistance of counsel. The test for prejudice

requires the defendant to show that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different, or, alternatively stated, whether there is a reasonable

probability that, absent the errors, the fact finder would have had

(1985).

Defendant asserts that the lower court erred in rejecting his

claim that defense counsel was ineffective for failing to rebut the

State’s experts. The lower court denied the claim that counsel

should have called a blood spatter expert because the points that

50

Mr. James, Defendant’s post conviction expert, testified to were

elicited from Mr. Rhodes, the State’s expert at trial, on cross.

Additional testimony on these points would have not affected the

outcome of the proceedings and Defendant failed to show that a

defense expert would have been available at the time of trial. (R.

6034-48)

Defendant asserts that Mr. James’ "flick test" corroborated

Defendant’s trial testimony that the blood on the driver’s door

came from flicking blood off his finger while driving. However, Mr.

James was asked if his flick test would corroborate Defendant’s

testimony regarding flicking his fingers at the evidentiary

hearing. (T. 525) He replied:

I never inferred that he was -- anyone was

sitting or that it was even [Defendant] that

produced those blood stains. Don’t forget the

door can also have been opened. The flicking

of the finger could have occurred at any point

in time. I am not inferring it occurred when

someone was in the driver’s seat.

(T. 525) After Defendant’s trial testimony on this point was read

to Mr. James, he was asked if that was the flick he was referring

to and responded:

No, I didn’t. We didn’t make any specific

references, just the flicking of the hand in

general. You know, if [Defendant] said that,

that is what he said.

* * * *

I believe we just got to the point where that

was an example of flicking the blood. We

didn’t limit it to [Defendant’s] flicking

blood. It could be anybody who was in contact

of the victim exiting or entering the vehicle

51

after the victim was located. We don’t know

when that occurred, if it even occurred like

that. I gave you an example of how small spots

of blood can be produced. I am not trying to

attach to any specific event. You can’t.

(T. 526-27) Thus, it cannot be said that Mr. James’ flick test

corroborated Defendant’s testimony.

Defendant next claims that Mr. James’ testimony contradicted

the trial testimony that the passenger’s window of Defendant’s car

was opened 3 and 3/4 inches. Mr. James, however, agreed that at the

time when this blood was deposited on the window it was no more

than 3 and 3/4 inches open. (T. 528-31) He stated that this blood

was either back spatter or exhaled blood. (T. 450-52) He also

stated that the lack of exhaled blood on the right side of the

victim’s body indicated that her head was to the left at the time

she exhaled. (T. 556-57) As such, Mr. James’ testimony does not

rebut the fact that the blood on the passenger’s window was

deposited at the time of the shooting or that the window was 3 and

3/4 inches open.

The only real areas of disagreement between Mr. Rhodes, the

State’s trial expert, and Mr. James concerned the blood on the

driver’s door and the blood on the blanket. However, these points

were covered during the cross examination of Mr. Rhodes at trial by

defense counsel.

Mr. James stated that the blood on the blanket and the

driver’s door could not be back spatter because it was in the wrong

52

direction. (T. 445-46) Mr. Rhodes had stated that he had no

explanation of how back spatter went in that direction, that

deflection was possible, but not probable, and that he did not know

how it got there. (D.A.R. 3821, 3832) Mr. James stated that these

stains did not prove that Defendant was not in the driver’s seat at

the time of the shooting. (T. 484) Mr. Rhodes had agreed during his

trial testimony. (D.A.R. 3930)

Mr. James stated that the blood on the blanket may not have

been the victim’s blood. It could have been animal blood or any

number of other substances and it could not be said when it got on

the blanket. (T. 431-32) These areas were covered during the cross

examination of Mr. Rhodes, who agreed with defense counsel. (D.A.R.

3866-68, 3881, 3938-39) Mr. James stated that the blood may have

been smeared blood because the fibers in the blanket may have

broken the blood into small spots. (T. 475) Mr. Rhodes had conceded

this on cross. (D.A.R. 3860-62) Mr. James stated that the blood on

the bottom of the blanket was unexplainable because high velocity

blood spatter would not have penetrated through the blanket. (T.

475-76) Mr. Rhodes had agreed on cross. (D.A.R. 3877-78, 3898)

With regard to the driver’s door, Mr. James testified it was

not possible to state when these stains were made. Mr. Rhodes

agreed. (D.A.R. 3832) While Mr. James stated that he did not think

these stains could be related to a common point of origin, Mr.

James never saw the stains. (T. 467-70) He merely relied on a

53

description of the stains from a report. (T. 518) However, he

conceded that the description of the directionality of small stains

was difficult to determine. (T. 518-21) Further, Mr. Rhodes

acknowledged that the string test assumed that the blood traveled

in a straight line and that he could not say that the blood had

done so. (D.A.R. 3943)

As the points to which Mr. James would have testified were

presented, the lower court properly found that counsel was not

ineffective for failing to call defense expert where cross

Further, had Defendant called Mr. James at trial, he would

have contradicted Defendant’s testimony. Mr. James stated that he

did not find exhaled blood on Ms. Kischnick’s right side. (T. 556-

57) He did find exhaled blood on her left leg, the center console

of the car, Defendant’s right leg and Ms. Kischnick’s left

shoulder. (T. 456-57, 480) Mr. James stated that Ms. Kischnick’s

head was toward the left when she was still seated upright and

after she was reclined. (T. 539-46) At trial, Defendant testified

that Ms. Kischnick’s head was toward the right. (D.A.R. 4490-94,

4499) As this was part of Defendant’s attempt to discredit the

State’s theory of how the blood got on the blanket and the driver’s

54

door, it would not have been helpful. As calling Mr. James would

have opened the door to this impeachment of Defendant, counsel

could not be considered ineffective for failing to present it.

The jury did not find the evidence relied upon by Defendant

persuasive in that it depends on contamination of the driver’s door

and the blanket. Defendant’s explanation of the contamination was

the flicking of his fingers. However, Defendant’s own post

conviction expert did not support this thesis. Defendant’s post

conviction expert instead suggested that personnel at the crime

scene contaminated the evidence. However, this assertion was never

proven; no testimony or proffer to support such a conclusion was

made in the court below.

Additionally, Mr. Rhodes first testified on deposition about

the blanket on July 7, 1988. Prior to that he had testified on

deposition about the blood specks on the driver’s door on May 24,

1988 and June 29, 1988. (R.4783-4917, 6038-39) Trial in this matter

commenced on July 13, 1988. (D.A.R. 1667) The rush to trial was at

Defendant’s insistence. (R. 4999) Further, Defendant had already

taken a continuance after the State had its witnesses travel from

Germany. (T. 1422-23) As such, it is highly unlikely that Defendant

would have gotten another continuance this close to the trial date

unique particles affecting the level of certainty of gunshot

residue analysis. However, Mr. Cooper testified that unique

particles did affect the level of certainty of gunshot residue

analysis. (T. 607)

55

in order to obtain an expert.

Mr. James testified that he believed experts would be

available "depending upon scheduling." (T. 484) Given the limited

time available to obtain an expert after the need for one appeared,

the lower court properly also rejected the claim because Defendant

U.S. 1014 (1988).

Defendant next claims that his trial counsel was ineffective

in failing to use authoritative literature to impeach the testimony

of Gopinath Rao, the State’s gunshot residue expert at trial. He

claims that this impeachment would have shown that several

conclusions could be drawn from the gunshot residue found on

Defendant’s hands: Defendant was near a gun when fired, handled a

Defendant also appears to be asserting that counsel was

ineffective for not calling an expert to rebut Mr. Rao’s testimony.

However, counsel did call an expert to rebut Mr. Rao’s testimony.

As such, counsel cannot be deemed ineffective for failing to do

what he in fact did.

At trial, Mr. Rao admitted that gunshot residue could come

FBI would surely have influenced the jury. However, Dr. Guinn

developed the method of gunshot residue analysis adopted by the

FBI. (D.A.R. 4785)

56

from handling a recently fired gun. (D.A.R. 3615) He also conceded

that having one’s hand within one to three feet of a gun when it

was fired would leave gunshot residue on one’s hands. (D.A.R. 3617)

He acknowledged that a gunshot fired through a passenger’s window

would leave gunshot residue throughout the car and would reach the

driver’s side. (D.A.R. 3617-22) Mr. Rao stated that having gunshot

residue on one’s hands could come from handling a gun, being near

a gunshot or firing a weapon, and that it did not necessarily mean

one was a shooter. (D.A.R. 3625)

In addition, defense counsel presented his own expert, Dr.

cover everything in a car if a bullet was fired into it. (D.A.R.

4812-14, 4829-30) He stated that gunshot residue would be found on

the person seated in the driver’s seat. (D.A.R. 4830) He stated

that gunshot residue could not conclusively prove someone fired a

gun. (D.A.R. 4838-39) He opined that Mr. Rao’s conclusion, that he

could say to a reasonable scientific probability that Defendant had

shot a gun, had no scientific support. (D.A.R. 4851) He stated that

the only thing that could be concluded was that one was near a gun

being fired or had fired a gun. (D.A.R. 4850)

Thus, both of the experts agreed that gunshot residue could

57

have come from being in the vicinity of a gunshot. As such, there

was no battle of the experts on this point to be resolved by resort

to literature. The lower court, therefore, properly found that

counsel was not ineffective for failing to present cumulative

The reason the jury did not accept these other alternatives

was that Defendant had more gunshot residue on his hands than the

victim had on hers. (D.A.R. 3533-3536, 3540-46) Ms. Kischnick,

the passenger, was closer to the gunshot than anyone in the

driver’s seat could have been. Further, movement causes gunshot

residue to be removed. (D.A.R. 3546-47) Ms. Kischnick died where

she sat. Defendant moved considerably, including driving a car and

touching Ms. Kischnick’s head. (D.A.R. 4490-97) Even Defendant’s

post conviction expert could not offer an explanation for this

difference, except to say that Ms. Kischnick’s hands were too far

from the gunshot. (T. 620) Thus, the jury did not credit these

other possibilities, and accepted the State’s expert’s testimony

that Defendant was the shooter to a reasonable scientific

probability.

Defendant next assails his counsel for failing to present

evidence that the bullets used were common and more than three

58

types of guns could have fired the fatal shot. However, Mr. Quirk

testified at trial that the bullets were common. (D.A.R. 2971-72)

As such, counsel cannot be deemed ineffective for failing to do

With regard to the guns, Defendant alleges that counsel should

have confronted Mr. Quirk with the fact the FBI database would have

revealed 14 types of guns that could have fired the fatal shot of

which 11 were