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A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgTech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala5TechnicalTechnical Document Style)WD (1) . 2HMa6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   2Kz<Ha1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . PleadingHeader for numbered pleading paperP@n   $] X X` hp x (#%'0*,.8135@8: 0*(( jury can determine whether Ms. Lowe's present belief that Mr. Mosley is the individual she saw is based upon her observations and memory of that night or a product of her confusion. The record establishes, however, that the circuit court's findings are not supported by substantial competent evidence but are contrary to the entire record, both the trial and evidentiary hearing record. Not only are the circuit court findings rejecting Ms. Lowe's recantation dependent upon the Mosley photo lineup but the circuit court's finding that there is "absolutely no credible evidence to support the defendant's claim that it was Eddie Lee Mosley who committed the murder of Shandra Whitehead" is also wholly dependent upon this Mosley photo lineup:   ` `  All of the credible evidence demonstrates conclusively that the defendant's claim [that it was Eddie Lee Mosley who committed the murder] is totally unfounded. The evidence established that Mosley, together with a few other men, was considered by the police early in the investigation as a potential suspect. In this vein, the police showed Mosley's picture to all of the available witnesses. (Thus the Court observes that if any one was "targeted" by the police as a suspect it was Mosley, and not the defendant). The witnesses unanimously stated that Mosley was not the individual they had seen.  2   (PCR. 286). ` x 2@ ԍFurther, the circuit court did not admit or consider the evidence indicating that Mr. Mosley committed the murder. See Argument I, Section B. Thus, the circuit court's conclusion that there is "absolutely no credible evidence to support the defendant's claim that it was Eddie Lee Mosley who committed the murder" was reached without consideration of relevant evidence and is wholly unsupported by the record. Moreover, the circuit court's conclusion creates a very real problem under aBrady v. Maryland, 373 U.S. 83 (1963)Brady v. Maryland, 373 U.S. 83 (1963)aBrady v. Maryland, 373 U.S. 83 (1963). The State never disclosed the "third" photo lineup, never disclosed that Eddie Mosley was related to and familiar with the victim, and' 0*(( never revealed that false testimony had been presented. Certainly, had trial counsel known of these matters he would have pursued it and discovered that Ms. Lowe's identification of Frank Lee Smith was shaky. Showing her a picture of Eddie Mosley before the jury would have completely changed her testimony. This new evidence calls into question this Court's prior rejection of Mr. Smith's Brady claim. ? 0*((ԌThe circuit court in its findings offers absolutely no explanation as to why all of the witnesses, Detectives Scheff and Amabile, Ms. Lowe, Mr. Davis and Mrs. McGriff, pretrial and at trial swore that there were just two photo lineups and that the only suspect who was identified as a relative of Mrs. McGriff was Edwin McGriff. The circuit court in its order merely ignores the substantial competent prehearing evidence that indicated that the three witnesses were shown only two photo lineups, one containing Mr. Freeman's photo and the other containing Mr. Smith's photo, and that the only suspect who was identified as a relative of Mrs. McGriff was Edwin McGriff. In doing so, the circuit court totally ignored evidence that a jury would never ignore. In analyzing a claim of newly discovered evidence, a court must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at trial." Jones v. State, 591 So. 2d at 916. The trial evidence must be considered by someone, for the circuit court obviously never evaluated it, relying upon the hearing testimony as the sum total of the truth. A new jury is best able to weigh this significant prehearing evidence evidence which is contrary to the circuit court's theory of confusion and the testimony of the state's witnesses at the evidentiary hearing. @ 0*((ԌThe mystery Mosley photo lineup is the basis for the circuit court's findings that Ms.Lowe "became confused, and became convinced that Mosley was the individual" and that "all of the available eyewitnesses identified Smith, and rejected Mosley." (PCR. 2856). However, all of the prehearing evidence proves that this photo lineup was never conducted, and the circuit court never addressed this evidence. The reason is obvious. The State never offered an explanation. A proper evaluation of the evidentiary hearing record and the trial record establishes that Ms. Lowe's hearing testimony, "had it been introduced at the trial, would have probably resulted in an acquittal." iJones v. State, 491 So. 2d 911, 916 (FlaJones v. State, 491 So. 2d 911 (Fla. 1991)iJones v. State, 591 So. 2d 911, 916 (Fla. 1991).  2 % CONCLUSION ׃ Based upon the record and the discussion herein, Mr. Smith respectfully urges that this Court reverse the lower court's order, grant Mr. Smith a new trial and sentencing, and/or remand for a new evidentiary hearing before an impartial judge. I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record on October 2, 1992. XX` ` X XXhh#X(LARRY HELM SPALDING(# XX` ` X XXhh#X(Capital Collateral Representative(# ` ` X XXhh#X(Florida Bar No. 0125540(# ` `  hh#(- XX` ` X XXhh#X(GAIL E. ANDERSON(# XX` ` X XXhh#X(Assistant CCR(# XX` ` X XXhh#X(Florida Bar No. 0841544(# ` `  hh#(- XX` ` X XXhh#X(JOHN S. SOMMER(# XX` ` X XXhh#X(Staff Attorney(# XX` ` X XXhh#X(Florida Bar No. 862126(# 'A 0*(( ` `  hh#(THOMAS H. DUNN ` `  hh#(Special Assistant CCR ` `  hh#(Florida Bar No. 871753 XX` ` X XXhh#(OFFICE OF THE CAPITAL(#h ` `  hh#( COLLATERAL REPRESENTATIVE XX` ` X XXhh#X(1533 South Monroe Street(# XX` ` X XXhh#X(Tallahassee, FL 32301(# ` ` X XXhh#X((904) 4874376(# ` `  hh#(_______________________________ ` `  hh#(COUNSEL FOR APPELLANT Copies furnished to: Robert Krauss Assistant Attorney General Department of Legal Affairs 2002 North Lois Avenue 7th Floor Tampa, FL 33607