CASE NO. 85-4654 CF

STATE OF FLORIDA,

Plaintiff,

FRANK LEE SMITH,

Defendant.

______________________/

DEFENDANT'S POST-HEARING MEMORANDUM

This instant post-hearing memorandum is submitted in support of Frank Lee Smith's Motion to Vacate Judgment and Sentence.

A. Preliminary Statement

Mr. Smith was indicted by a grand jury for first-degree murder, sexual battery, and burglary on May 9, 1985, in the Seventeenth Judicial Circuit, Broward County, Florida. After entering not guilty pleas, Mr. Smith's trial by jury began January 21, 1985. The State's case rested entirely on the testimony of three purported identification witnesses. No physical evidence connected Mr. Smith to the offense. Dorothy McGriff, the victim's mother, identified Mr. Smith by the shape of his shoulders (R. 656), but could not describe the face of the

man she had seen at the scene (R. 655). Gerald Davis, called as a court witness because he had given numerous inconsistent statements (R. 741-43), could only say Mr. Smith "looked like" a man Davis had encountered near the scene (R. 793), but could not make a positive identification (R. 795). Chiquita Lowe, the State's key witness, identified Mr. Smith as the man she spoke to outside the victim's home on the night of the offense (R. 680). On January 31, 1985, the jury retired to deliberate its verdict. After five hours of deliberations, the jury sent out a note requesting to hear Ms. Lowe's testimony (R. 1227). The jury was asked to rely on its recollection, and continued deliberations (R. 1232). One hour later, the jury again requested to have Lowe's testimony read (R. 1232-33). The testimony was read to the jury, and the jury again retired (R. 1234-35). Finally, after eight hours and twenty-five minutes of deliberations, the jury returned a guilty verdict (R. 1252).

At the penalty phase conducted on February 5, 1986, the jury recommended death (R. 1364). On May 2, 1986, the judge sentenced Mr. Smith to death (R. 1440). Mr. Smith unsuccessfully appealed his convictions and sentence, Smith v. State, 515 So. 2d 182 (Fla. 1987), and certiorari to the United States Supreme Court was denied on March 21, 1988, Smith v. Florida, 108 S. Ct. 1249 (1988).

On November 17, 1989, Mr. Smith filed a Rule 3.850 motion in this Court, requested leave to amend, and an evidentiary hearing. On December 13, 1989, after a brief oral argument, this Court summarily denied all relief without conducting an evidentiary hearing (PC-R. 326, 327). On December 15, 1989, Mr. Smith timely filed a motion for rehearing (PC-R. 331-33), and on December 18, 1989, a supplement to the motion for rehearing (PC-R. 334-53), which were denied on December 20, 1989 (PC-R. 354-55). Mr. Smith then filed a motion for reconsideration of rehearing on December 22, 1989 (Amendment to PC-R. 1-7), and a timely notice of appeal on December 26, 1989 (PC-R. 356-57). In Smith v. Dugger, 565 So. 2d 1293 (Fla. 1990), the Florida Supreme Court held that this Court erred in not granting Mr. Smith a full and fair hearing regarding newly-discovered evidence including Ms. Lowe's repudiation of her trial testimony and identification of another man at the crime scene. This Court held a one-day evidentiary hearing on March 7, 1990.

The facts pertinent to Mr. Smith's claims for relief are discussed in the body of this post-hearing memorandum. The facts involved compellingly demonstrate that Mr. Smith is innocent of the offense for which he was convicted and sentenced to death. These facts are summarized here and will be related to Mr. Smith's claims for relief in the discussion of the individual issues presented below.

The Florida Supreme Court found that the State's case against Mr. Smith relied solely upon the identification testimony of Ms. Lowe who had seen a suspicious man near the victim's home about one hour before the time of the offense. No other evidence implicated Mr. Smith -- there were no fingerprints, no blood stains, no serology evidence and no fiber particles. Of the three identification witnesses called, Ms. Lowe was clearly the key State witness. Dorothy McGriff, the victim's mother, who had seen a man in the dark reaching into a window of her home, could not describe the man's face (R. 655), and only "identified" Mr. Smith by the shape of his shoulders (R. 656). Mr. Davis, a passerby who encountered a strange man in the street near the victim's home, could not positively identify Mr. Smith (R. 795), and could only say Mr. Smith "looked like" the man Davis had seen (R. 793). Ms. Lowe was the key, as the jury twice requested that her testimony be read during the jury's deliberations. The jury obviously had significant doubts regarding Mr. Smith's guilt, deliberating for over eight hours.

What was revealed in post-conviction -- and what this Court heard -- would have resolved the jury's doubts in Mr. Smith's favor. Ms. Lowe has now provided a sworn affidavit explaining that when she was testifying at Mr. Smith's trial, she knew that Mr. Smith was not the man she had seen near the victim's house. Ms. Lowe's affidavit explains that the photograph of another suspect in the crime, Eddie Lee Mosley, is the man she saw and that she wrongly identified Mr. Smith:

1. My name is Chiquita Lowe and I live in Ft. Lauderdale, Florida. I am presently twenty-four years old.

2. In 1985, I testified during a murder trial. A little girl was raped and killed near my grandmother's house. I saw the man in the street right before the crime happened.

3. In 1985, I told the police detectives and the state attorney about how the man asked me for money. I told them that I only saw the man for an instant and that the only things I remembered were the droopy eye, scraggly hair, pot marks on his face, and the ring on his finger.

4. The police detectives and the attorney told me the man had a scar under his eye. I never saw a scar and they knew that. The state attorney told me that the man on trial had committed several crimes just like the one that happened near my grandmother's house. The state attorney also told me that the man on trial was dangerous, guilty of the crime, and needed to be taken off the streets.

5. While I was in the courtroom telling about what I saw, I knew that the man on trial was too thin to be the same man I saw on the street. The police detectives and the state attorney put so much pressure on me to testify against the man on trial.

6. The state attorney told me not to worry about my testimony because the man would be locked up and electrocuted the following May. He also pointed out the man's entire family to me. I was just feeling so pressured.

7. I have not forgotten about the trial and every few months I picture the man's face in my mind. I also remember how sorry I felt for the little girl.

8. On December 20, 1989, I was shown a photo and asked if this was the man who approached me and asked for fifty cents back in 1985. When I looked at the picture everything came back to me. The photo is attached to this affidavit. The man in the photo is without a doubt the man I saw. I know that he is not the same man who was on trial for the little girl's murder. I am so sorry that the wrong man is in prison and sentenced to death. I had doubts in the courtroom but I was under so much pressure. Also, the state attorney told me about how dangerous the man was and how he needed to be locked up forever.

9. I feel so bad that I did not tell the state attorney about my doubts. I did not know what to do. I felt a lot of pressure to say that the man on trial was the man I saw, even though I had doubts, and the man's hair did look the same.

10. I swear on my mother's grave that the man in the photo is the man I saw on the street the night when the little girl was raped and killed. I identified the wrong man in the courtroom.

(Amendment to PC-R. 4-7).

Eddie Lee Mosley, alias Jessie Smith, was originally a suspect in this case. After Mr. Smith was charged with the murder, the investigation focused upon proving that Mr. Smith was the perpetrator. The identification witnesses were never shown pictures of all of the suspects. Detectives Scheff and Amabile testified at trial that the witnesses were never shown a photograph of Mr. Mosley (R. 946 - Amabile, 1026 -Scheff). Had they been shown a picture of him, they would have instantly recognized him as the man that they saw on the night of the crime, the man they later described, and the man that is portrayed in the composite sketch, as Ms. Lowe has now done. They would have known that Mr. Smith was the wrong man.

Shortly after the offense, the police developed a composite drawing of the man seen near the victim's home the night of the offense. The composite was developed from descriptions provided by Mr. Davis and Ms. Lowe. A comparison of that composite sketch with the picture of Eddie Lee Mosley and the picture of Mr. Smith dramatically illustrates the wrongfulness of Mr. Smith's conviction.

The resemblance between the photo and the composite is striking and corroborates Ms. Lowe's affidavit statement that Mosley is the person she saw, not Mr. Smith. The shape of the face, the nose and the droopy eye in the composite and Mosley's picture all are identical. Ms. Lowe testified at trial that she was certain about the droopy eye (R. 683-84), but was not sure if it was the right or left eye (R. 696). Mr. Davis testified that one eye was sleepy, like it was dead (R. 751). Mr. Mosley is six feet tall and weighs 198 pounds. Ms. Lowe testified that the man she saw was approximately six feet tall and weighed 190 pounds (R. 671). Mr. Davis testified that the man he saw was 6 feet or 6 feet 1 inch tall (R. 757). The descriptions given and the composite are much closer to Mr. Mosley than they are to Mr. Smith.

But the evidence goes beyond personal appearance. Mr. Mosley has an established record for violent sex crimes, all involving girls and women from the northwest section of Fort Lauderdale, the same area where Shandra Whitehead was killed, and is considered by Fort Lauderdale police as the city's "most dangerous serial killer." Since Mr. Smith's conviction, Mr. Mosley has been arrested, charged, and indicted in two rape/ murders. Additionally, he has been tied to six other rape/ murders and five forceable sexual batteries between 1973 and 1987 and is a suspect in numerous others.

Police and Department of Corrections records regarding Mr. Mosley indicate strong resemblances between Mr. Mosley's behavior and that of the person encountered by Davis and Lowe. Both Mr. Davis and Ms. Lowe described the suspect's behavior as strange, delirious, and weird (R. 668-69, 750). Mr. Mosley has an I.Q. of about 51 and has been found to be incompetent to stand trial on two occasions. Mr. Davis described the suspect as rugged looking (R. 750), unkempt with kinky, knotted and uncombed hair (R. 751), and said that he appeared to be a "bum" (R. 756). Mr. Mosley was a loner and spent much of his time living on the streets.

Ms. Lowe testified at trial that about four days after the offense, a man came to her home trying to sell a television set, and that this man was the same person Lowe had seen near the victim's house (R. 677). The suspect that allegedly tried to sell the T.V. to Ms. Lowe's grandmother brought the T.V. to the house in a shopping cart (R. 804). Mr. Mosley's records establish that his usual routine was to steal things and then peddle them from a grocery cart. When Mr. Mosley was arrested in 1987, he was pushing a shopping cart full of stolen plants down the street, and admitted that he was going to sell them. Upon his arrest, he also implicated himself in nine murders.

Davis testified that the person he encountered approached Davis from a field across from the victim's house (R. 745-46), and asked Davis if he had any drugs and if he wanted to have sex (R. 748-49). Mosley's records establish that he had a habit of approaching strangers from a field and asking them for drugs. In 1980, Mosley was convicted of a sexual battery which occurred after he "came out from a vacant field and asked [the victim] where he can sell some reefer" (D.O.C. records). In 1984, Mosley was charged with a sexual battery which occurred in a vacant field (Defense Exhibit M). During that assault, Mosley told the victim he had "not murdered all those girls." Id. In 1982, Mosley was charged with a robbery and battery which occurred after Mosley approached a car and asked the driver if he wanted to buy some drugs (Defense Exhibit N). The records also include an order for involuntary hospitalization (Defense Exhibit J) that stated Mr. Mosley suffered from sexual preoccupation and overt homosexuality. In addition, there were many mental health evaluations (Defense Exhibits C-G).

Davis also testified that the person he encountered "ran as if he was knock-knee'd, wasn't straight" (R. 756). Mosley's records establish that he suffered a serious leg injury as a child, at one time used a cane, and walks with a distinct limp.

This crime involved the sexual assault and murder of an eight-year-old girl. Mosley's records include statements in which he has said he has no problem fulfilling his sexual needs because he watches the girls coming out of school and has no trouble satisfying his sexual needs. At the time of the offense, when Davis refused the suspect's sexual advances, the suspect told Davis, "I guess I have to go back and jack myself off" (R. 749), and then headed for the victim's house (R. 750).

That the case against Mr. Smith was weak and thus that the evidence discussed above would have produced a different outcome is not only demonstrated by the case itself, but also by the prosecutor's actions two years after Mr. Smith's conviction and death sentence. In the Broward County Sheriff's Department file regarding Mr. Smith's case is the following report:

On Tuesday, February 24, 1987, this writer, as requested by A.S.A. William Dimitrouleas, compared the fingerprint standards of George Gregory Reddick to the latent lifts reference B.S.O. Case #85-4-5789.

All workable latents were previously identified by this writer; however, this writer compared the remaining latents of no value to Reddick's fingerprint standards, and found negative results.

(Defense Exhibit 4; see also PC-R. 70-71). Clearly, if the state attorney was still investigating suspects in Shandra Whitehead's death two years after Mr. Smith's conviction, substantial weaknesses existed in the case against Mr. Smith.

As noted above, the State's case against Mr. Smith rested entirely on identification testimony. Although the State presented innumerable lay, law enforcement, and expert witnesses, none of this testimony established anything connecting Mr. Smith to the offense. Law enforcement officers testified at trial regarding their investigation of the scene, taking photographs of the scene, the collection of items from the scene, and the collection of latent fingerprints, but none of this testimony connected Mr. Smith to the offense. Medical doctors testified regarding the victim's injuries and cause of death, but none of this testimony connected Mr. Smith to the offense. Forensic experts testified regarding fingerprint comparisons and serologic examinations, but none of this evidence connected Mr. Smith to the offense.

The only evidence tending to implicate Mr. Smith was the identification testimony at trial, which was established at the hearing to have been a mistake. As Ms. Lowe testified at the hearing, Eddie Lee Mosley was the man she saw, and Frank Lee Smith was not the man. Ms. Lowe indicated that when she saw Mr. Smith in the courtroom (she had never seen him in person before that time), she knew he was not the man she encountered near the victim's home. Ms. Lowe's testimony is corroborated by records indicating that Mosley has a history of sexual offenses involving girls and women in the same section of Ft. Lauderdale, that Mosley peddles stolen goods from a grocery cart (as the suspect in this case did), that Mosley has a pattern of approaching strangers from fields and asking for drugs (as Davis testified the suspect in this case did), that Mosley had a serious leg injury and walks with a limp (as Davis testified the suspect in this case did), and that Mosley is preoccupied with sex (as the suspect in this case indicated to Davis).

Mr. Smith was wrongfully convicted of capital murder and wrongfully sentenced to death. On March 7, 1991, this Court heard additional evidence. The facts, the law, and justice require reversal.

ARGUMENT I

Mr. Smith petitioned the Florida Supreme Court for relief, and the Florida Supreme Court granted relief in Smith v. Dugger, based on Mr. Smith's claim "relating to newly-discovered evidence." 565 So. 2d at 1297. Thus, Mr. Smith first addresses the proper standard to be utilized by this Court when ruling on Mr. Smith's March 7, 1990 hearing.

Since Mr. Smith's claim is a factual innocence or insufficiency of the evidence claim and Mr. Smith is in essence seeking immediate relief or a new trial, Mr. Smith's claim pre-Fla. R. Crim. P. 3.850 would have been considered in a petition for writ of error coram nobis. Even though Fla. R. Crim. P. 3.850 has replaced the writ for those persons who are currently detained (those not in detention still use the writ), the caselaw surrounding the writ is applicable to a Rule 3.850 hearing. See Richardson v. State, 546 So. 2d 1037, 1038 (Fla. 1989). In Richardson, 546 So. 2d at 1038, the Florida Supreme Court discussed the requirements for filing this claim and the standard to be utilized by the reviewing court in a passage from Hallman v. State, 371 So. 2d 482 (Fla. 1979).

Thus, Mr. Smith will first discuss Hallman. The Hallman court agreed with the trial court that Mr. Hallman was not entitled to ask for Rule 3.850 relief from the trial court regarding newly-discovered evidence. The Hallman court listed the requirements for the appellate court to consider in determining whether the claim is legally sufficient to send to step two. If step one's answer is yes, then step two is that the trial court must conduct an appropriate evidentiary hearing. Hallman, 371 So. 2d at 485 (citation omitted). The Hallman majority (a four to three vote) stated that the standard to be utilized was the "conclusiveness test" (if the alleged facts had been known at trial, then they would have conclusively prevented the entry of judgment). Hallman at 485. In other words, in our context does the new evidence conclusively establish a reasonable doubt? The policy reason given by the court was finality.

The Florida Supreme Court has already determined Mr. Smith's claim to be legally sufficient and has remanded to this Court for a step two hearing. Thus, Mr. Smith focuses on the appropriate standard for a full and fair hearing. Justice Overton's opinion in Hallman was better reasoned concerning the proper standard. Hallman at 486 (Overton, J., dissenting). Justice Overton's opinion discussed the United States Supreme Court's unique treatment of death penalty law. Justice Overton stated that the majority's concern for finality should not diminish the judicial system's responsibility to ensure that the death penalty is administered only where fairness and justice are assured. It certainly cannot be stated that Mr. Smith, who is innocent, was assured the justice and fairness guaranteed to him by the Florida and United States constitutions.

Justice Overton discussed the United States Supreme Court's reasoning in Gardner v. Florida, 430 U.S. 349, 351 (1977), that because of its severity and its finality, the death penalty is different. Justice Overton also referenced the United States Supreme Court's decision in Lockett v. Ohio, 438 U.S. 586 (1978). "The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. Lockett, 438 U.S. at 605, 98 S. Ct. at 2965, 57 L.Ed.2d at 90." Hallman, 371 So. 2d at 482. In Wilson v. Wainwright, 474 So. 2d 1162 (Fla. 1985), the Wilson court reasoned that "the propriety of the death penalty is in every case an issue requiring the closest scrutiny." Wilson, 474 So. 2d at 1164. The Wilson court made this statement in reference to an ineffective assistance of counsel claim for appellate counsel's failure to brief insufficiency of the evidence and propriety of the death penalty claims.

Mr. Smith asks this Court to consider the newly discovered evidence with a death-is-different attitude, and to form an exception to the "conclusiveness test" when a death case is considered. Mr. Smith urges this Court to adopt the standard in Fla. R. Crim. P. 3.600(a)(3) entitled grounds for new trial. Mr. Smith should not be penalized with a heightened standard because the newly discovered evidence was not discovered within 10 days of the rendition of the verdict or the finding of the court. The standard found in Rule 3.600(a)(3) is:

(3) That new and material evidence, that if introduced at the trial would probably have changed the verdict or finding of the court, and that the defendant could not with reasonable diligence have discovered and produced upon the trial, has been discovered.

(Emphasis added). Mr. Smith is deserving of the "probability test" as his case more reflects the policy concerns found in Rule 3.600 than the policy concerns surrounding a writ of error coram nobis. However, under either test Mr. Smith is entitled to a new trial.

In Richardson v. State, 546 So. 2d 1037 (Fla. 1989), the Florida Supreme Court held that Rule 3.850 encompassed much of the writ; however, its decision did not specifically hold what standard would be applicable at the trial court level. Because the death penalty is different and Rule 3.600 more resembles Mr. Smith's claim for relief, Mr. Smith urges this Court to apply the "probability test."

ARGUMENT II

Mr. Smith would remind this Court that the Florida Supreme Court was troubled by Ms. Lowe's affidavit because "of the witness identifications presented at trial, that of Lowe was the most credible." Smith v. Dugger, 565 So. 2d 1293, 1296 (Fla. 1990). The jury twice requested to rehear Ms. Lowe's testimony, and after the second request the court acceded. The jury rendered its verdict soon after rehearing Ms. Lowe's testimony. Thus, the State's case came down to Ms. Lowe.

The State certainly cannot have satisfied the test stated in Smith v. State, 515 So. 2d 182, 184 (Fla. 1987), that all reasonable hypotheses of innocence were excluded by substantial, credible evidence. If the jury had not heard Ms. Lowe's trial testimony, then there is no doubt that they would have found Mr. Smith to be innocent. Mr. Smith should not lose his constitutional rights to be found innocent unless and until the State proves beyond a reasonable doubt his guilt just because of Ms. Lowe's mistaken identification at trial of Mr. Smith. Ms. Lowe's hearing testimony in and of itself creates a reasonable doubt of Mr. Smith's guilt.

ARGUMENT III

After the affidavit was submitted before this Court, Ms. Lowe married and is now Chiquita Ohlich. However, to avoid any confusion Chiquita Ohlich will be in this memorandum referenced to as if she was still unmarried, by her maiden name - Lowe. Ms. Lowe's trial testimony was critical to the State's case and Ms. Lowe's hearing testimony was also critical. Mr. Smith and Ms. Lowe are telling this Court that she was mistaken when she said in court that Mr. Smith was the man. Ms. Lowe has only changed her trial testimony as to who the man was she saw on April 14, 1985, and April 18, 1985.

Ms. Lowe was the main witness relied on by the police in making a composite of the suspect. Mr. Davis was asked in a deposition about his role in the composite, and Mr. Davis responded: "She [Chiquita Lowe] saw more of the guy than I did" (Deposition of Gerald Davis in State v. Smith at 19, June 25, 1985) (Defense Exhibit 2). Mr. Davis also responded to the State's pressure on him to identify Mr. Smith by stating: "Chiquita saw more than I did. Trust Chiquita because I can't [be] too sure" (Deposition of Gerald Davis at 27)(Defense Exhibit 2). Ms. Lowe's composite closely resembles Eddie Lee Mosley. The composite and a photo of Mr. Mosley were placed next to each other on page 5 in Mr. Smith's Motion to Vacate Judgment of Conviction and Sentence filed in this Court on November 17, 1989.

Ms. Lowe's trial and hearing testimony was that she was driving to a friend's house in Lauderhill, when she was flagged down by one of two men walking in the street. Ms. Lowe testified consistently that the man leaned into her car and asked her for fifty cents. She then testified that she told the man she did not have fifty cents and she drove off. At trial, Ms. Lowe testified she "looked dead at him" from about eighteen inches away (R. 670).

During the hearing, the State entered into evidence two of Ms. Lowe's prior statements to the police. The first statement (State Exhibit 4) was taken on April 16, 1985, and the second statement (State Exhibit 6) was taken on April 19, 1985. In State Exhibit 5, Ms. Lowe gave a description of the man she saw on April 14, 1985:

Thirties, mid thirties

* * *

Six (feet tall)

* * *

190, 195 (pounds)

* * *

Muscular

* * *

Q. ...big arms, big chest?

A. Yes, yes.

* * *

Some hair around his face, yes

* * *

Scraggly (hair on his face)

* * *

Q. What about his hair up on top?

A. It looked like it wasn't combed, just up

* * *

(Hair) was medium short (in length)

(Statement of Ms. Lowe taken on April 16, 1985, Case No. 85-4-5789 at page 3)(State Exhibit 5). Ms. Lowe continued to describe the man she had seen:

He acted just delirious

* * *

Q. Did he have any scars or tattoos or anything that you can remember?

A. No

* * *

Pores like you see pores little pores.

* * *

Greasy face too, greasy, like oily skin

(Statement of Chiquita Lowe at 4-5) (State Exhibit 5). Ms. Lowe's April 19, 1985, statement was consistent with Ms. Lowe's deposition taken on June 25, 1985 (State Exhibit 4) and Ms. Lowe's trial testimony. Ms. Lowe's description remained that the man she had seen was: in his thirties (R. 685); about six feet tall (State Exhibit 4 at 7)(R. 671, 688); 190 to 200 pounds (State Exhibit 4 at 7)(R. 672, 688, 694); muscular with big arms (State Exhibit 4 at 14)(R. 288); some scraggly hair on his face (State Exhibit 4 at 6, 7)(R. 690, 694); had a greasy or oily face with noticeable pores on his cheeks (State Exhibit 4 at 6, 23)(R. 671, 691, 684); his hair was sticking everywhere on his head (State Exhibit 4 at 7, 22)(R. 671); had a droopy eye (State Exhibit 4 at 7-8)(R. 683); he was acting weird, nervous or delirious (State Exhibit 4 at 5)(R. 669) and he did not have any scars on his face (State Exhibit 4 at 20)(R. 706).

Mr. Smith brings this to this Court's attention because Ms. Lowe did not see Mr. Smith in person until she was in the courtroom and then it was too late to admit that this was the wrong man (Ms. Lowe testified to this at the hearing). Ms. Lowe also mentioned in a pre-hearing conference that she wanted to tell the State Attorney, Mr. Dimitrouleas, that she did not think that Mr. Smith was the man she had seen because Mr. Smith looked too small. Mr. Mosley is both taller and heavier (more muscular) than Mr. Smith. Mr. Mosley was six feet to six feet two inches tall and weighed 198 pounds. Mr. Smith was between five feet eleven inches and six feet tall and between 165 to 170 pounds. Both Mr. Mosley and Mr. Smith have scars on their faces and thus the testimony about no scars could not be used to eliminate either man and could possibly implicate someone else. Ms. Lowe just didn't notice the scar that night, but this certainly does not destroy her trial or hearing testimony. Ms. Lowe testified at trial that Mr. Smith had a scar on his face (R. 706-07).

At the hearing Ms. Lowe testified that she was never shown a photo lineup with Mr. Mosley. Miss Lowe was shown only one photo lineup featuring Mr. Freeman and a second photo lineup featuring Mr. Smith. The reason Ms. Lowe picked out Mr. Smith from the lineup is that he looked like the man because he had scraggly hair. If one looks at the photo (Defense Exhibit 1) of Mr. Mosley from the affidavit, then one can see the scraggly hair Ms. Lowe so vividly remembers. Ms. Lowe felt a great deal of pressure from the whole process of the police picking up a suspect, Mr. Smith, and then saying they got the man.

Ms. Lowe was approached in January 21, 1989 by Jeff Walsh, a CCR investigator. Ms. Lowe testified at the hearing that Mr. Walsh did not pressure her but only asked her if he could speak to her regarding her 1985 testimony in Mr. Smith's trial. Ms. Lowe let Mr. Walsh in, and Mr. Walsh asked Ms. Lowe some general questions. Mr. Walsh then showed Ms. Lowe a photo of Mr. Mosley (Defense Exhibit 1). Seeing this photo created a warm feeling in Ms. Lowe. Ms. Lowe's warm feeling stemmed from three years of picturing "the man's face" and believing that she had identified the wrong man in court; however, after seeing Mr. Mosley's picture she knew this was the man and justice would be served. Ms. Lowe's sketch and description of the suspect were not wrong, and this brought a sense of relief. Ms. Lowe had not described the wrong man; however, the police had arrested the wrong man. By the time that Ms. Lowe had realized that the police had arrested the wrong man, Ms. Lowe was in the courtroom and she thought it was too late. Ms. Lowe realized that Mr. Smith was not the man she saw on April 14, 1985, and this Court should grant Mr. Smith complete relief or in the least a new trial.

ARGUMENT IV

Mr. Smith respectfully renews his objection and submits that this Court was in error when it did not admit a list of thirty of Mr. Mosley's potential victims, seven local newspaper articles regarding Mr. Mosley as a serial killer, five mental health evaluations of Mr. Mosley, Cynthia Maxwell's deposition, Lisa Wiseman's affidavit, a circuit court order regarding the involuntary hospitalization of Mr. Mosley, a motion to appoint additional experts in State v. Mosley, five police offense reports on Mr. Mosley and Dr. Hathaway's testimony. This Court cannot separate Ms. Lowe's testimony and attempt to consider it in a vacuum. Ms. Lowe's testimony that Mr. Smith was not the man was only half of Ms. Lowe's affidavit upon which the Florida Supreme Court granted relief. The other half was that Mr. Mosley was the man. Mr. Smith is entitled to a full and fair evidentiary hearing on both claims that Mr. Smith was not the man and Mr. Mosley was. Although it is not Mr. Smith's duty to prove who did it, Mr. Smith has a constitutional right to show his innocence and the State has the duty to prove his guilt beyond a reasonable doubt. These rights and duties are always present. Ms. Lowe has said that Mr. Mosley was the man and Mr. Smith deserves a full and fair hearing on both why Mr. Smith was not the man and why Mr. Mosley was the man. Ms. Lowe's testimony as to Mr. Smith not being the man would have been corroborated by Dr. Hathaway's testimony if this Court would have allowed it into evidence. Ms. Lowe testified at the hearing and at trial (R. 703) that the man she saw on April 14, 1985 and April 19, 1985 did not have glasses on. Dr. Hathaway's testimony was that Mr. Smith is legally blind and that his uncorrected vision is off the eye charts at 20/400. Dr. Hathaway also testified that the average nearsighted person is -3.00 and that Mr. Smith is a -12.00. Ms. Lowe testified that the man flagged her down and approached her car leaning in the driver's side window. Ms. Lowe did not testify that the man felt his way along her car or appeared to have trouble seeing her (i.e., as if he needed his glasses). Without glasses, Mr. Smith would certainly have struggled and fumbled. This Court should also note that Mr. Smith sees even worse the longer the distance.

Ms. Lowe's testimony that Mr. Mosley was the man was corroborated by all the mental health evaluations, the deposition, Lisa Wiseman's affidavit, the victim's list, the local newspaper articles, a motion to appoint additional experts in Mr. Mosley's trial, an involuntary hospitalization circuit court order for Mr. Mosley and the five police offense reports. Ms. Lowe was able to identify Mr. Mosley as the man from a photograph, and all the other evidence would have supported her testimony giving it additional credibility and reliability. See Rivera v. State, 561 So. 2d 536 (Fla. 1990). Mr. Smith's Florida and United States constitutional rights were hindered by this Court's exclusion of this evidence.

Mr. Smith was deserving of a full and fair evidentiary hearing on why Mr. Smith was innocent and why Mr. Mosley was the man responsible. Richardson v. State, 546 So. 2d 1037 (Fla. 1989), and Fla. R. Crim. P. 3.850 show the importance of obtaining "just results." Because the death penalty is so severe and final, there is a requirement of enhanced reliability including those phases specifically concerned with guilt, Beck v. Alabama, 447 U.S. 625, 637-38 (1980). Amadeo v. Zant, 108 S. Ct. 1771 (1988). Mr. Smith is entitled to every safeguard the law has to offer, Gregg v. Georgia, 428 U.S. 153, 187 (1976), including full and fair post-conviction proceedings. See e.g. Shaw v. Martin, 613 F.2d 487, 491 (4th Cir. 1980); Evans v. Bennet, 440 U.S. 1301, 1306 (1979)(Rehnquist, Circuit Justice, granted a stay "because of the obviously irreversible nature of the death penalty"). Mr. Smith was denied a full and fair evidentiary hearing and is entitled to Rule 3.850 relief.

ARGUMENT V

The State presented no physical evidence at the trial or at the hearing to link Mr. Smith to the crime scene, and at the hearing it was shown that the State continued its efforts to link someone to the scene as late as 1987 (Defense Exhibit 4, a request from Mr. Dimitrouleas to the Broward County Sheriff's Office to compare Mr. Reddick's fingerprints to those prints obtained in Shandra Whitehead's case). Mr. Dimitrouleas testified at the hearing that he continued to test prints because Mr. Reddick had committed a similar crime in Pompano; however, the point is that Mr. Smith's case has not been "solved" with any physical evidence. Mr. Smith has certainly not been physically linked to the crime scene.

At the evidentiary hearing, the State focused on Mr. Mosley not being the man; however, this does not prove Mr. Smith did it. It does not refute the fact that Ms. Lowe is certain that Mr. Smith was not the man. As a result, Mr. Smith's conviction must be reversed. Rule 3.850 relief is warranted.

OTHER CLAIMS

A number of other claims were presented in Mr. Smith's Motion to Vacate. Mr. Smith urges this Court to reconsider all of the claims that were barred before this cause was remanded by the Florida Supreme Court. It should be noted, however, that the substantive legal issues presented as part of the claims herein are also presented as independent claims for Rule 3.850 relief. See Motion to Vacate with regard to those and the other independent issues presented in this action. Counsel continues to assert that such claims are either of the variety classically cognizable in Florida post-conviction actions, are predicated upon fundamental error, or are based upon fundamental, significant changes in law.

C. Conclusion

For the reasons expressed in his Rule 3.850 Motion, on the basis of the evidence adduced at the evidentiary hearing before this Court, and in light of the discussion presented herein, Mr. Smith respectfully urges this Court to grant him the Rule 3.850 relief to which he has established his entitlement.

Respectfully submitted,

LARRY HELM SPALDING

Capital Collateral Representative

Florida Bar No. 0125540

MARTIN J. MCCLAIN

Chief Assistant CCR

Florida Bar No. 0754773

OFFICE OF THE CAPITAL

COLLATERAL REPRESENTATIVE

1533 South Monroe Street

Tallahassee, FL 32301

(904) 487-4376

By:______________________________

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail, first class, postage prepaid, to Paul H. Zacks, Assistant State Attorney, Office of the State Attorney, 201 S.E. 6th Street, Ft. Lauderdale, Florida 33301, this 8th day of April, 1991.

_________________________________

Attorney