| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 78,907 |
| [3] | 1991.FL.48939 <http://www.versuslaw.com>; 591
So. 2d 911; 16 Fla. Law W. S 745 |
| [4] | November 14, 1991 |
| [5] | LEO ALEXANDER JONES, APPELLANT, v. STATE OF FLORIDA, APPELLEE |
| [6] | An Appeal from the Circuit Court in and for Duval County, A. C. Soud,
Jr., Judge - Case No. 81-4593-CF Div. "W". |
| [7] | Larry Helm Spalding, Capital Collateral Representative and Thomas H.
Dunn, Assistant CCR, Office of the Capital Collateral Representative,
Tallahassee, Florida, for Appellant. |
| [8] | Robert A. Butterworth, Attorney General and Mark C. Menser, Assistant
Attorney General, Tallahassee, Florida, for Appellee. |
| [9] | Shaw, C.j. and Overton, Barkett, Grimes, Kogan and Harding, JJ.,
concur. McDonald, J., dissents with an opinion. |
| [10] | Author: Per Curiam |
| [11] | Leo Alexander Jones, a state prisoner for whom a second
death warrant has been signed, appeals the denial of a motion for
post-conviction relief and requests a stay of his execution. We have
jurisdiction under article V, section 3(b)(1) of the Florida Constitution. |
| [12] | Jones was convicted of the 1981 murder of Officer
Szafranski of the Jacksonville Police Department. The trial judge followed
the jury's recommendation and sentenced Jones to death. This
Court affirmed the conviction and sentence. Jones v. State, 440 So.2d 570 (Fla. 1983). Jones later
filed a petition for habeas corpus which this Court denied.
Jones v. Wainwright, 473 So.2d 1244
(Fla. 1985). Jones then filed a motion for post-conviction
relief under Florida Rule of Criminal Procedure 3.850. The trial court
denied this motion, and this Court affirmed. Jones v. State,
528 So.2d 1171 (Fla. 1988). Following the signing of
his first death warrant in September of 1988, this Court denied
Jones' petition for habeas corpus. Jones v.
Dugger, 533 So.2d 290 (Fla. 1988). A federal district
court granted a stay of execution but later held that Jones
was not entitled to relief. The Eleventh Circuit Court of Appeals
affirmed. Jones v. Dugger, 928 F.2d 1020 (11th Cir.), cert.
denied, 116 L. Ed. 2d 174, 112 S. Ct. 216 (1991). |
| [13] | The essential facts surrounding the murder were set forth in our
original opinion: |
| [14] | The evidence at trial showed that on May 23, 1981, shortly after 1:00
A.M., Officer Thomas J. Szafranski was shot in his squad car at the
intersection of 6th Street and Davis Street, Jacksonville, Florida.
Officer Wilmouth was first on the scene. While Wilmouth waited for medical
assistance to arrive a group of people came out of a nearby bar and
approached him. One unidentified member of the group indicated that the
shots had come from the two-story apartment building fronting the 6th and
Davis Street intersection. Thereafter Wilmouth proceeded to investigate
this building. |
| [15] | Officer Mundy had been informed of the incident by radio and quickly
joined Wilmouth in the investigation. According to Mundy, the reputation
of the apartment building in question was well travelled in law
enforcement circles. Mundy entered the building fully aware that the
vacant lower left apartment was a known "stash house" harboring drug
users, vagabonds and other street criminals. |
| [16] | The two officers' search of the building's lower level produced
nothing. However, Wilmouth informed Mundy that he had heard "shuffling" in
the upper left apartment. Thereafter Mundy approached this apartment,
knocked on the door, and proceeded to identify himself as a police
officer. His repeated knocking, however, went unanswered. When Mundy
continued to hear voices coming from within he entered the apartment;
there he confronted appellant and appellant's cousin, Bobby Hammond,
charging them both with attempted first-degree murder. During a cursory
search of the apartment, assisting officers located several high-powered
rifles, resting in plain view, but did not, at that time, disturb
them. |
| [17] | Both appellant and Hammond were then transported to the Police
Memorial Building. There, after being given repeated Miranda warnings by
Officer Eason, appellant signed a statement incriminating himself and
exonerating his cousin, Hammond. |
| [18] | Jones, 440 So.2d at
572. |
| [19] | Prior to trial, Jones moved to suppress his confession.
He and Hammond testified that the police beat them both at the scene and
at the police station. The police acknowledged striking them at the scene
but testified that it was necessary to do so because they were resisting
arrest. The police denied hitting them at any other time. Prior to
obtaining Jones' short two-sentence confession, they took
him to the hospital. The attending doctor testified that
Jones had only superficial injuries. The trial judge refused
to suppress the confession, and this ruling was ultimately approved on
appeal. |
| [20] | At trial, the State relied heavily upon the confession. However, there
was also testimony that about a week prior to the murder
Jones had told a police officer that he was tired of being
hassled by the police and that he intended to kill a pig. Further, Hammond
testified that on the night of the murder, he saw Jones
leave the apartment with a rifle in his hand. Hammond then heard gunshots
and shortly thereafter Jones returned to the apartment still
carrying the rifle. This testimony was consistent with the State's theory
that Jones had fired the shots from a downstairs apartment.
However, Hammond was impeached by an earlier sworn statement to the effect
that he did not see Jones with a gun that night. The police
found two rifles in the apartment, but the condition of the bullets in the
officer's body prevented them from making a ballistics comparison. A
hand-swab test was taken to determine whether Jones had
recently fired a gun. However, the crime laboratory analyst testified that
there was an insufficient amount of antimony present for him to reach any
conclusion. He explained that he would have expected this result because
of the four-hour delay in taking the test and the fact that a rifle rather
than a pistol was involved. |
| [21] | Jones' first motion for post-conviction relief focused
primarily upon allegations of ineffectiveness of trial counsel. Among
these allegations was the contention that counsel was ineffective for
failing to locate Marion Manning, whose boyfriend, Glen Schofield, was
Jones' roommate and owned the guns used in the shooting.
Jones argued that Ms. Manning would have testified that
Schofield was at the scene at the time of the shooting and that shortly
after the shots were fired he jumped into her nearby car and told her to
drive away. Trial counsel, H. Randolph Fallin, testified that he
recognized that Schofield might be a suspect but said that Schofield
refused to talk to him when he tried to interview him at the jail where
Schofield was being held following an arrest for an unrelated crime.
Fallin further stated that neither Schofield nor anyone else had given him
the name of the woman who was supposed to have been with Schofield
following the shooting. In rejecting this argument as a basis for
post-conviction relief, we said: |
| [22] | Accepting the judge's finding that he was never told her last name,
Fallin cannot be faulted for not locating Marion Manning. Moreover, it is
questionable whether she could have been helpful to the defense because
she testified at the post-conviction hearing that as he got into the car,
Schofield told her that appellant had shot the policeman. |
| [23] | Jones, 528 So.2d at
1174. |
| [24] | The current motion for post-conviction relief alleges (1) that counsel
was ineffective for failing to locate and present witnesses other than
those referred to in the first motion for post-conviction relief, and (2)
that Jones is entitled to a new trial because of newly
discovered evidence. Clearly, Jones is not entitled to
relief on the first ground. Jones has already had a full and
fair hearing on his claim of ineffectiveness of trial counsel. A defendant
may not raise claims of ineffective assistance of counsel on a piecemeal
basis by filing successive motions. Francis v. Barton, 581 So.2d
583 (Fla.), cert. denied, 115 L. Ed. 2d, 111 S. Ct. 2879
(1991); Squires v. State, 565 So.2d 318 (Fla. 1990).
Moreover, his current motion was filed beyond the two-year time limit of
Florida Rule of Criminal Procedure 3.850. However, allegations of newly
discovered evidence fall within the exception to the two-year requirement
of rule 3.850. Therefore, Jones' claims of newly discovered
evidence must be carefully considered. |
| [25] | The evidence which Jones claims to be newly discovered
is reflected by affidavits attached to his motion and includes the
following: |
| [26] | (1) Patricia Owens (then Ferrell) stated that she was living with Glen
Schofield at the time of the murder and that he had complained to her
about being harassed by the police. She said that after the murder
Schofield told her to tell the police that he was home with her when the
murder occurred and that he made an equivocal statement which implied that
he was the killer. She further stated that a week after the killing
Schofield went to jail for robbing a bank but that when he got out of
prison eight years later he bragged to her about killing Officer
Szafranski. |
| [27] | (2) Linda Atwell, who was Jones' girlfriend, stated that
as she left Jones' apartment on the night of the murder
Schofield passed her running upstairs holding a rifle or a shotgun. In
response to her inquiry of why he was running up the stairs, he replied,
"Them crackers are after me." |
| [28] | (3) Katherine Dixon stated that she and her boyfriend, Tony Brown,
were waiting at their apartment to meet Schofield on the night of the
murder, but he never showed up. The following morning she saw a gun in the
closet. Brown told her it was a 30-30 rifle but refused to tell her who
owned the gun. Brown took the gun, and she never saw it again. Soon after,
Brown and Schofield were arrested for robbing a bank. |
| [29] | (4) Daniel Cole stated that he was walking with his girlfriend, Denise
Reed, near the murder scene on the night the officer was killed. He heard
a shot and within a few minutes saw Schofield running from the area behind
Jones' apartment house holding a rifle in his
hand. |
| [30] | (5) Denise Reed gave a statement which essentially corroborated that
of her boyfriend, Daniel Cole. |
| [31] | (6) Frank Pittro, who is presently in jail at Marion Correctional
Institution, stated that he met Schofield at a time when both of them were
incarcerated in Union Correctional Institution in 1985. He said Schofield
bragged to him on more than one occasion about how he killed a
Jacksonville police officer and got away with it. Schofield told him the
officer had been harassing him for a long time, and he described how he
took a high caliber rifle and shot him. Schofield then told him that he
ran through an apartment building and out the back to get away from the
police. Schofield also told him that Leo Jones had been
arrested for the killing but that Jones had nothing to do
with the crime. |
| [32] | (7) Franklin Delano Prince, who is an inmate at Union Correctional
Institution, stated that in 1985 or 1986 Schofield told him that he killed
a Jacksonville police officer and that Leo Jones was in
prison for the murder. He said that Schofield confessed the killing to
many others, including another inmate named John Davis. |
| [33] | (8) An investigator of the Capital Collateral Representative (CCR)
reported an interview with Paul Marr. Marr is said to have told the
investigator that Marr and Schofield were both incarcerated at Union
Correctional Institution in 1985. At that time, Schofield described to
Marr how he killed a Jacksonville police officer in 1981. Schofield
explained that he obtained a rifle from an apartment building, shot the
officer, returned the rifle to the apartment, and exited through the back
door of the apartment building where he was later picked up by a woman
friend. Marr said that Schofield had told him that Leo Jones
was on death row for the crime that Schofield had committed. |
| [34] | (9) In preparing to defend against Jones' current motion
for post-conviction relief, the Duval County assistant state attorney John
Jolly discovered certain documents in his file which he immediately
disclosed to CCR. Those documents reflected that in 1990, Michael
Richardson was in the Clay County Jail awaiting trial for robbery. In
trying to negotiate a plea bargain, he told an assistant state attorney
that Schofield was responsible for the 1981 murder of a Jacksonville
police officer. This information was passed on to the Duval County
Sheriff's Department. A representative of that department interviewed
Richardson, who confirmed that he had overheard Schofield telling how he
committed the crime. |
| [35] | After the filing of Jones' current motion, the trial
judge held an emergency Sunday afternoon hearing at which both counsel
made comprehensive arguments on the legal sufficiency of the motion. The
judge denied the motion, reasoning that the ineffective assistance of
counsel claim was procedurally barred and that that portion of the
evidence which could be deemed newly discovered would not have compelled a
verdict for Jones in the event it had been introduced at
trial. In so ruling, the judge employed the standard mandated by this
Court for measuring the validity of petitions for writ of error coram
nobis involving newly discovered evidence. |
| [36] | The seminal case on attempting to set aside a conviction because of
newly discovered evidence is Hallman v. State, 371 So.2d 482, 485 (Fla. 1979), in which this Court said: |
| [37] | The general rule repeatedly employed by this Court to establish the
sufficiency of an application for writ of error coram nobis is that the
alleged facts must be of such a vital nature that had they been known to
the trial court, they conclusively would have prevented the entry of the
judgment. Williams v. Yelvington, 103 Fla. 145, 137 So. 156 (1931); House v. State, 130
Fla. 400, 177 So. 705 (1937); Baker v.
State, 150 Fla. 446, 7 So.2d 792
(1942); Cayson v. State, 139 So.2d 719 (Fla. 1st
DCA), appeal dismissed, 146 So.2d 749 (Fla. 1962). In
Russ v. State, this Court expressly stated: "The showing must be such that
if the matters shown had been before the trial court when judgment was
entered, the court would have been precluded from entering the judgment." 95 So.2d at 597 (emphasis added). This traditional
"conclusiveness test" in error coram nobis proceedings is predicated on
the need for finality in judicial proceedings. This is a sound principle,
for litigants and courts alike must be able to determine with certainty a
time when a dispute has come to an end. |
| [38] | In Preston v. State, 531 So.2d 154 (Fla. 1988),
we explained that under the Hallman standard, if the sole prosecution
witness recanted his testimony, a petition for coram nobis could be
granted. However, if the newly discovered evidence did not refute an
element of the State's case but rather only contradicted evidence that had
been introduced at trial, the petition must be denied. In a concurring
opinion, Justice Overton, joined by Justice Kogan, contended that the
probability test for granting new trials on the basis of newly discovered
evidence as set forth in Florida Rule of Criminal Procedure 3.600(a)(3)
should be applicable to petitions for writ of error coram
nobis. |
| [39] | Recently, this Court receded from Hallman to the extent that we held
that all newly discovered evidence claims should now be brought in a
motion pursuant to Florida Rule of Criminal Procedure 3.850 and that such
claims would not be cognizable in an application for writ of error coram
nobis unless the defendant was not in custody. Richardson v. State, 546 So.2d 1037 (Fla. 1989). It has been argued that
our decision in Richardson also changed the Hallman standard of review for
claims based on newly discovered evidence, but we did not say this in our
opinion. Upon consideration, however, we have now concluded that the
Hallman standard is simply too strict. The standard is almost impossible
to meet and runs the risk of thwarting justice in a given case. Thus, we
hold that henceforth, in order to provide relief, the newly discovered
evidence must be of such nature that it would probably produce an
acquittal on retrial. The same standard would be applicable if the issue
were whether a life or a death sentence should have been imposed. We note
that this is the standard currently employed by the federal courts. United
States v. Menard, 939 F.2d 599 (8th Cir. 1991); United States v.
Underwood, 932 F.2d 1049 (2d Cir. 1991), cert. denied, 116 L. Ed. 2d 333,
112 S. Ct. 382, 60 U.S.L.W. 3342) (1991); United States v. Reed, 887 F.2d
1398 (11th Cir. 1989), cert. denied, 493 U.S. 1080, 110 S. Ct. 1136, 107
L. Ed. 2d 1041 (1990); United States v. Martin, 815 F.2d 818 (1st Cir.),
cert. denied, 484 U.S. 825, 98 L. Ed. 2d 51, 108 S. Ct. 89 (1987). See
also Miles v. Nix, 911 F.2d 146 (8th Cir. 1990) (applying same standard
for newly discovered evidence as a basis for habeas relief from state
court conviction). |
| [40] | Before applying this new standard of review to this case, we must
examine the evidence proffered by Jones and see whether it
qualifies as newly discovered. The Hallman definition of newly discovered
evidence remains intact. That is, the asserted facts "must have been
unknown by the trial court, by the party, or by counsel at the time of
trial, and it must appear that defendant or his counsel could not have
known them by the use of diligence." Hallman, 371 So.2d at 485. |
| [41] | Referring to the proffered evidence, it appears that much of the
evidence referring to events which occurred near the time of the murder
may not qualify as newly discovered because if not already known it could
have been obtained with the exercise of reasonable diligence. For example,
Linda Atwell was Jones' girlfriend, and she said she was in
his apartment earlier in the evening. Further, the name and telephone
number of Patricia Owens, who is now said to be Schofield's girlfriend,
were set forth in the police report. Therefore, anything she would have
said about Schofield's activities before and after the murder may have
been available to Jones' counsel. It also seems likely that
Jones knew most, if not all, of the others who made
statements concerning events contemporaneous with the murder and that
their testimony could have been obtained, but this cannot be conclusively
determined from the face of the pleadings. On the other hand, Schofield's
confessions to the various inmates*fn1
other than Marr*fn2
and to Patricia Owens after he got out of jail clearly qualify as newly
discovered evidence which should be considered. |
| [42] | The trial judge's order which rejected the claim based on newly
discovered evidence was clearly correct under the Hallman standard. In
light of Jones' confession as well as the other evidence
introduced at the trial, it could not be said that the newly discovered
evidence would have conclusively prevented Jones'
conviction. Under the probability standard we have adopted in this
opinion, we cannot be sure whether Jones' motion should be
denied. On the face of the pleadings, we cannot determine whether some of
the evidence can properly be said to be newly discovered. Moreover, we
cannot fully evaluate the quality of the evidence which demonstrably meets
the definition of newly discovered evidence. Therefore, we believe it
necessary to have an evidentiary hearing on the claims that are based upon
newly discovered evidence. At the hearing, the trial judge should consider
all newly discovered evidence which would be admissible and determine
whether such evidence, had it been introduced at the trial, would have
probably resulted in an acquittal. In reaching this conclusion, the judge
will necessarily have to evaluate the weight of both the newly discovered
evidence and the evidence which was introduced at the trial. |
| [43] | We reverse the order denying Jones' motion for
post-conviction relief and remand the case for an evidentiary hearing in
accordance with this opinion. As a consequence, we hereby stay
Jones' pending execution. |
| [44] | It is so ordered. |
| [45] | McDONALD, J., dissenting. |
| [46] | Today the Court adopts a new standard for evaluating the effect of
newly discovered evidence on a final judgment of guilt. Now we say that
newly discovered evidence may be the basis for relief if it would probably
produce an acquittal on retrial. Accepting every affidavit tendered by
Jones to be true, the newly discovered evidence fails to
meet that test. At best, it would show that another party, Glen Schofield,
participated in the shooting along with Jones.*fn*
None of the newly discovered evidence exonerates Jones; it
does not contradict his confession nor does it explain any of the
circumstantial evidence linking Jones to the
crime. |
| [47] | I would deny relief under either standard used on newly discovered
evidence. |
|
| |
| Opinion Footnotes | |
|
| |
| [48] | *fn1
We do not view the circumstances surrounding the taking of Richardson's
statement as a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d
215 , 83 S. Ct. 1194 (1963), and we therefore reject the Brady claim
Jones makes in this appeal. However, because CCR just
learned of Richardson's existence, they may be excused for not yet
procuring his statement. In any event, Richardson's testimony concerning
Schofield's statements would be newly discovered evidence. |
| [49] | *fn2
Schofield's statement to Paul Marr is newly discovered in the sense that
it could not have been known at trial. However, at the hearing on
Jones' first motion for post-conviction relief, he
unsuccessfully sought to introduce Marr's testimony in support of his
claim of ineffective assistance of counsel. Thus, the use of Marr's
statement in this proceeding is procedurally barred because it was known
at the time of Jones' first motion. |
|
| |
| Dissent Footnotes | |
|
| |
| [50] | *fn*
There were two shots fired. |