[xxx1]

IN THE SUPREME COURT OF FLORIDA

CASE NO. 78,199

____________________________________________________________

FRANK LEE SMITH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

____________________________________________________________

ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH

JUDICIAL CIRCUIT, BROWARD COUNTY, FLORIDA

____________________________________________________________

______________________________

INITIAL BRIEF OF APPELLANT

______________________________

LARRY HELM SPALDING

Capital Collateral Representative

Florida Bar No. 0125540

THOMAS H. DUNN GAIL E. ANDERSON

Special Assistant CCR Assistant CCR

Florida Bar No. 871753 Florida Bar No. 0841544

805 North Gadsden Street, Suite A

Tallahassee, FL 32303-6313 JOHN S. SOMMER

(904) 683-6499 Staff Attorney

Florida Bar No. 862126

OFFICE OF THE CAPITAL

COLLATERAL REPRESENTATIVE

1533 South Monroe Street

Tallahassee, FL 32301

(904) 487-4376

PRELIMINARY STATEMENT

This case involves the appeal of a trial court's denial of Rule 3.850 relief in a capital post-conviction proceeding. The post-conviction record is cited as "PC-R. ___" with the appropriate page number following thereafter. The direct appeal record is cited as "R. ___" with the appropriate page number following thereafter. All other citations are self-explanatory or are otherwise explained.

REQUEST FOR ORAL ARGUMENT

The resolution of the issues involved in this action will determine whether Mr. Smith lives or dies. This Court has traditionally allowed oral argument in capital cases. A full opportunity to air the issues through oral argument is appropriate in this case, given the significance of the issues involved and the stakes at issue, and Mr. Smith, through counsel, accordingly respectfully requests that the Court permit oral argument.

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT i

REQUEST FOR ORAL ARGUMENT i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIESiii

STATEMENT OF THE CASE AND FACTS 1

SUMMARY OF ARGUMENT 8

ARGUMENT I

THE CIRCUIT COURT DENIED MR. SMITH HIS RIGHT TO BE HEARD BY AN IMPARTIAL TRIBUNAL WHEN IT ENGAGED IN EX PARTE COMMUNICATIONS WITH THE STATE AND DENIED MR. SMITH HIS RIGHT TO A FULL AND FAIR HEARING WHEN IT PRECLUDED MR. SMITH FROM INTRODUCING RELEVANT EVIDENCE, AND THIS CASE SHOULD BE REMANDED FOR A FULL AND FAIR EVIDENTIARY HEARING BEFORE AN IMPARTIAL TRIBUNAL. 9

A. The circuit court denied Mr. Smith his right to be heard by an impartial tribunal when it engaged in ex parte communications with the State 9

B. The circuit court denied Mr. Smith his right to a full and fair hearing when it precluded Mr. Smith from introducing relevant evidence. 16

ARGUMENT II

NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT MR. SMITH'S CAPITAL CONVICTION AND SENTENCE ARE CONSTITUTIONALLY UNRELIABLE AND IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. 20

A. Ms. Lowe's Hearing Testimony 21

B. The "Mysterious" Mosley Photo Lineup 26

C. The Pressure Ms. Lowe Felt 37

D. Ms. Lowe's Hearing Testimony Is A Basis For Relief 38

CONCLUSION 42

TABLE OF AUTHORITIES

Page

Ake v. Oklahoma,

470 U.S. 68 (1985)16

Amstar Corp. v. Domino's Pizza, Inc.,

615 F.2d 252 (5th Cir. 1980)13

Beck v. Alabama,

447 U.S. 625 (1980)16

Brady v. Maryland,

373 U.S. 83 (1963)41

Carey v. Piphus,

425 U.S. 247 (1978)16

Crosby v. State,

97 So. 2d 181 (Fla. 1957)15

E.E.O.C. v. Federal Reserve Board of Richmond,

698 F.2d 633 (4th Cir. 1983)13

Golf City, Inc. v. Sporting Goods, Inc.,

555 F.2d 426 (5th Cir. 1977)13

Holland v. State,

503 So. 2d 1250 (Fla. 1987)13

Jones v. State,

591 So. 2d 911 (Fla. 1991)21, 40, 42

Livingston v. State,

441 So. 2d 1083 (Fla. 1983)15

Love v. State,

569 So. 2d 807 (Fla. 1st DCA 1990)12

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980)16

Rose v. State,

17 F.L.W. S319 (Fla. May 28, 1992)11

Shaw v. Martin,

733 F.2d 304 (4th Cir. 1984)13

Simms v. Greene,

161 F.2d 87 (3rd Cir. 1947)13

Smith v. Dugger,

565 So. 2d 1293 (Fla. 1990)1, 20, 21

Smith v. State,

108 S. Ct. 1249 (1988)1

Smith v. State,

515 So. 2d 182 (Fla. 1987)1

State ex rel. Davis v. Parks,

141 Fla. 516,

194 So. 613 (1939)11

Suarez v. State,

527 So. 2d 191 (Fla. 1988)15

Taylor v. Hayes,

418 U.S. 488 (1974)16

Williams v. State,

443 So. 2d 1053 (Fla. 1st DCA 1984)38

STATEMENT OF THE CASE AND FACTS

On May 9, 1985, Mr. Smith was indicted by a grand jury for first-degree murder, sexual battery, and burglary in the Seventeenth Judicial Circuit, Broward County, Florida. After entering not guilty pleas, Mr. Smith was tried by a jury beginning on January 21, 1985. The trial lasted eight days. After eight hours and twenty-five minutes of deliberations, the jury returned a guilty verdict (R. 1252). On February 5, 1986, the one-day penalty phase was held and 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 by the United Supreme Court was denied on March 21, 1988, Smith v. State, 485 U.S. 971 (1988).

Under the exigencies of a warrant, Mr. Smith filed a Rule 3.850 motion in the circuit court and a habeas corpus petition in this Court. Without an evidentiary hearing, the circuit court denied Mr. Smith Rule 3.850 relief.

This Court denied Mr. Smith's habeas petition, but as to Mr. Smith's Rule 3.850 motion held, "the trial court erred in failing to conduct an evidentiary hearing to evaluate this newly discovered evidence [Chiquita Lowe's affidavit]." Smith v. Dugger, 565 So. 2d 1293, 1297 (Fla. 1990). This Court reasoned:

At trial, the state's case against Smith consisted primarily of an allegedly inculpatory statement made by Smith and identification of Smith made by three witnesses. Dorothy McGriff, the victim's mother, testified that as she drove up to her home at 11:30 p.m., she saw a man standing outside one of the windows. She observed the man from a distance and could not identify his face. She later identified Smith based only on his shoulders. Chiquita Lowe testified that as she drove past the victim's house, a man flagged her down and asked her for fifty cents. She "looked dead at him" from a distance of eighteen inches and later conclusively identified Smith as the man. Gerald Davis testified that as he walked past the victim's house, a man engaged him in a conversation for several minutes. The street lights were out and Davis could not remember "how the guy looked." He testified that Smith looked like the man but he could not identify him positively. Of the witness identifications presented at trial, that of Lowe clearly was the most credible. After the jury had deliberated for five hours, it requested that it be permitted to rehear Lowe's testimony. The court declined. One hour later, the jury repeated its request. The court acceded. Two and one-half hours later, the jury rendered its verdict.

Smith, 565 So. 2d at 1296-97 (emphasis added).

On March 7, 1991, the circuit court held an evidentiary hearing as ordered by this Court. The circuit court only permitted Mr. Smith to present Ms. Lowe's testimony. Except for a proffer, the circuit court would not allow Mr. Smith to put in any corroborative evidence that Eddie Lee Mosley, the man Ms. Lowe's affidavit says she saw the night of the offense, was the man who committed this crime, and that Mr. Smith was not that man (P.C.-R. 27-47, 106-07). The proffered evidence included: a list of suspected Mosley victims, newspaper articles regarding Mosley, Dr. Frumkin's psychological evaluation of Mosley, Dr. Cohen's psychological evaluation of Mosley, Leslie Alker's HRS report on Mosley, Dr. Eichert's psychological report on Mosley, Dr. Koprowski's psychological report on Mosley, Cynthia Maxwell's deposition testimony regarding Mosley's sexual assault of her, Lisa Weisman's affidavit testimony regarding Mosley's sexual assault of her, an involuntary hospitalization order regarding Mosley, a motion appointing a mental health expert for Mosley, a Broward Sheriff's Office (B.S.O.) booking sheet regarding Mosley dated 5/19/87, a B.S.O. booking sheet regarding Mosley dated 5/17/84, a B.S.O. booking sheet regarding Mosley dated 4/30/82, a B.S.O. booking sheet regarding Mosley dated 4/12/80, a Ft. Lauderdale police report regarding Mosley dated 12/25/83, and Dr. Hathaway's testimony regarding Mr. Smith's eyesight.

In her affidavit and in her hearing testimony, Chiquita Lowe stated she identified the wrong man at trial. Ms. Lowe's mistake was an understandable one as Mr. Smith and Mr. Mosley, the man Ms. Lowe identified as the perpetrator in her affidavit and hearing testimony, look alike. The biggest difference between Mr. Smith and Mr. Mosley is their size. Although Mr. Davis and Ms. Lowe said that Mr. Smith looked like the man they saw that night, Mr. Davis repeatedly stated that he thought that Mr. Smith was not big enough. Ms. Lowe had only seen a photograph of Mr. Smith's face prior to trial, and Ms. Lowe did not realize that Mr. Smith was the wrong man. When she first saw Mr. Smith in person at the trial, she realized that Mr. Smith was not large enough to be the man she saw that night. It was too late, and Ms. Lowe did not know what to do. Due to the pressure she felt, Ms. Lowe identified Mr. Smith as the man she saw, even though she knew at the time he was the wrong man.

The circuit court allowed the State to present Ms. McGriff, the victim's mother, who testified that she was shown a photograph of Mr. Mosley by Detectives Scheff and Amabile and told them he was not the man she saw that night (PC-R. 114). Mr. Mosley was Ms. McGriff's cousin (Id.). Ms. McGriff did not see Mr. Mosley's picture in a 6-picture photo lineup but in a photo book the police showed her (PC-R. 119). The State was also allowed to present Detectives Scheff and Amabile, the two police officers who investigated the case. The officers testified that the three witnesses -- Dorothy McGriff, Gerald Davis and Chiquita Lowe -- were all shown three photo lineups, each consisting of six photos (PC-R. 132-133). Officer Scheff testified that the third photo lineup, containing Mr. Smith's picture, was shown to Ms. Lowe on April 19, 1985 (PC-R. 132). The offense occurred on April 14, and Officer Scheff testified he went to see Mr. Mosley after the offense (PC-R. 148). Before April 19, according to Officer Scheff's hearing testimony, Ms. Lowe and the other witnesses had been shown a photo lineup containing Mr. Mosley's picture (PC-R. 133). According to Officer Scheff, none of the witnesses identified Mr. Mosley (PC-R. 135). The State did not introduce a copy of the photo lineup containing Mr. Mosley's picture and did not introduce any police reports indicating that such a lineup had been shown to the witnesses. Officer Scheff testified that his reports did not indicate he showed any witnesses a photo lineup containing Mr. Mosley's picture (PC-R. 160).

Officer Scheff admitted on the stand that his hearing testimony directly contradicted his prior trial testimony (PC.-R. 181). Both Detectives Scheff and Amabile testified at Mr. Smith's trial that the witnesses, Ms. Lowe, Mr. Davis, and Mrs. McGriff, were shown only two photo lineups -- one containing a Mr. Freeman's photo and one containing Mr. Smith's photo (R. 946, Amabile and R. 1026, Scheff). Their testimony at trial was also consistent with the sworn testimony they both gave at their depositions. Moreover, at trial Ms. Lowe testified about only those two photo lineups (R. 678-82 [Smith photo lineup]; R. 684 [Freeman photo lineup]). Mr. Davis also testified at trial that he viewed only two photo lineups (R. 784). In fact, the prosecutor introduced both lineups into evidence at trial to show that Freeman was eliminated as a suspect (R. 881, Freeman photo lineup, and R. 902, Smith photo lineup).

Detective Scheff, the lead investigator in this case, gave a very lengthy and detailed deposition covering in chronological order everything he did in this case. He never mentioned that Mr. Mosley was a serious suspect that they actively investigated. He did not mention that there was a third photo lineup containing Mr. Mosley's photograph. He did not mention that Mr. Mosley was a relative of Mrs. McGriff. After Detective Scheff explained that Mr. Freeman was eliminated as a suspect by Ms. Lowe, Mr. Davis, and Mrs. McGriff, the following colloquy occurred:

Q. Did you have, at this point in time, anybody in mind?

A. You mean, as a suspect?

Q. Yes.

A. Oh, no.

Q. How about any relative of the deceased, uncles, cousins?

A. We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time, we discovered that Edwin McGriff had been accused, I think, in 1982, of a sexual battery of a minor black female child, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person that she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

(Scheff deposition p. 44). Again at Mr. Smith's trial, Detective Scheff was asked about relatives and again he indicated that a cousin, Edwin McGriff, was the only family member who was a suspect (R. 1022-23). Detective Scheff testified that this cousin, Edwin McGriff, was never displayed in a photo lineup (R. 1024). Detective Scheff did admit at trial that Mr. Mosley was a suspect, but testified that no photo lineup containing Mr. Mosley's picture was ever shown to the witnesses:

Q Was Eddie Lee Mosley ever a suspect in this case?

A Eddie Lee Mosley was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, really had no specific direction to go in.

Q How about Jessie Smith?

A Jessie Smith is Eddie Lee Mosley under an alias name.

Q Lee Greely, G-r-e-e-l-y Smith?

A I don't know.

Q That's all I have.

A Spell it again?

Q G-r-e-e-l-y. Doesn't ring a bell?

A No.

Q The man called Gator Mouth ever a suspect in this case?

A Yes.

Q The man that went by the name of Gator Mouth?

A Right.

Q Was a guy by the name of Big John ever a suspect in this case?

A Yes. I wouldn't say they were suspects in the case. I would say they were people who were brought to our attention for one reason or another.

Q How about Edward Simmons, did you ever check with John Boucada of your department? He supposedly looks like Mr. Smith.

MR. DIMITROULEAS: I will object to counsel testifying and I'm objecting to the form of the question.

THE COURT: Objection sustained, may be rephrased.

Q (By Mr. Washor) Did you ever investigate Edward Smith?

A Edward Simmons?

Q Simmons.

A No, sir.

Q Never had any contact with Detective Boucada regarding him?

A No, sir.

Q Were any of these people ever shown to any of the witnesses in either a photo or live lineup, people whose names I just read off other than Freeman?

A Other than Freeman, no.

(R. 1024 - 1026)(emphasis added).

At a pre-trial deposition, defense counsel specifically asked Detective Amabile if any of Mrs. McGriff's cousins were ever suspected of the murder. Detective Amabile responded that Edwin McGriff was the only cousin ever considered a suspect (Amabile Deposition at p. 44). Detective Amabile was asked this again at Mr. Smith's trial and again responded that no family members, other than Edwin McGriff, were suspects (R. 946). Moreover, Detective Amabile, like Detective Scheff, testified at trial that none of the suspects, with the exception of Freeman, were displayed in a photo lineup:

Q There were a slew of other suspects in this case, weren't there, besides Mr. Freeman?

A A slew or --

Q More than one?

A Yes.

Q Was there a Carspelia (phonetic) Williams who was a suspect?

A His name was given to us.

Q Eddie Lee Mosley?

A Yes.

Q Jessie Smith?

A I don't recall that name.

Q Greeley (phonetic) Smith?

A Again, I don't recall that name.

Q Edward Calvin McGriff?

A Yes.

Q Was he related to the family at all?

A I believe so, yes.

Q A person by the name of Gator Mouth?

A Yes.

Q A person by the name of Big John who Detective Frost said in his report somebody identified a composite?

A Yes.

Q Were any of these leads followed up on?

A Yes.

Q Were they all followed up on?

A Yes, to the best of my knowledge with the exception of the two names I don't recall hearing.

Q What became of Big John?

A That I believe Detective Scheff and myself checked out and he did not fit the physical description at all.

Q Is that reflected in anywhere in your notes or reports or anything of that nature?

A No, that would be Detective Scheff's.

Q He should have it somewhere?

A He should.

Q Were any of these other people other than Mr. Freeman in the photographic display or in the live lineup shown to any other witnesses?

A No.

Q Did you investigate any of the family members backgrounds to see whether they were ever involved in this kind of thing before?

A I believe Edward McGriff.

Q Anybody else?

A No.

(R. 945-6)(emphasis added).

At the conclusion of the hearing, it was decided that the State and Mr. Smith would simultaneously do post-hearing memoranda (PC-R. 205). Post-hearing memoranda were done (PC-R. 231-64). The State and the circuit court judge then had ex parte communication in which the circuit court asked the State to prepare an order (PC-R. 274). The state then sent with a cover letter a proposed order to Mr. Smith (PC-R. 274-78). Mr. Smith filed a Motion to Disqualify the circuit court judge because of the ex parte communication (PC-R. 265-82). The motion was denied. Mr. Smith also filed objections to the state's draft order (PC-R. 279). The circuit court never ruled on Mr. Smith's objections, but signed verbatim the State's proposed order (Compare PC-R. 275-78 [proposed order] with PC-R. 284-87 [signed order]). Mr. Smith appealed.

SUMMARY OF ARGUMENT

1. The circuit court denied Mr. Smith his right to be heard by an impartial tribunal when the circuit court judge engaged in ex parte communication with the Assistant State Attorney representing the State. After the evidentiary hearing, Assistant State Attorney Zacks informed Mr. Smith's counsel that Judge Tyson had contacted Mr. Zacks and discussed Mr. Smith's case. Judge Tyson directed Mr. Zacks to prepare an order denying relief. Mr. Smith and his counsel were not privy to the discussion. Upon learning of the ex parte communication, Mr. Smith's counsel filed a motion to disqualify Judge Tyson. The motion was denied, and Judge Tyson signed verbatim the order prepared by the State. The motion to disqualify was facially sufficient and timely, and Judge Tyson should have recused himself. Because of the ex parte communication, Mr. Smith reasonably questioned Judge Tyson's impartiality. Under Rose v. State, the ex parte communication requires reversal and a new evidentiary hearing.

The circuit court also denied Mr. Smith a full and fair hearing when it refused to admit or consider evidence relevant to Mr. Smith's claim. This evidence supported Mr. Smith's claim that Eddie Lee Mosley, not Mr. Smith, committed the murder. The trial court's refusal to admit this evidence denied Mr. Smith a fair opportunity to prove his claim, and a new evidentiary hearing is required.

2. At the evidentiary hearing, Chiquita Lowe testified that she was mistaken when she identified Mr. Smith at trial as the man she saw the night of the murder. Ms. Lowe realized this mistake when she saw Mr. Smith in the courtroom. Before then, she had only seen a photograph of Mr. Smith's face. When she saw Mr. Smith at trial, Ms. Lowe realized he was not big enough to be the man she saw. However, even though realizing her mistake at trial, Ms. Lowe did not know what to do and thus identified Mr. Smith. At the evidentiary hearing, Ms. Lowe positively identified Mr. Mosley as the man she saw. The circuit court determined that Ms. Lowe is "convinced" that Mr. Mosley is the man she saw.

Nevertheless, the circuit court erroneously denied relief, although had Ms. Lowe's identification of Mr. Mosley been presented at trial, Mr. Smith would not have been convicted. The circuit court premised its denial of relief upon the supposed existence of a third photo lineup containing Mr. Mosley's picture. The State's witnesses at the evidentiary hearing testified that this third photo lineup was shown to all of the identification witnesses shortly after the offense in 1985. The circuit court reasoned that Ms. Lowe identified Mr. Mosley because she had been shown his picture in 1985, not because she had seen him the night of the offense. This premise, however, is contrary to everything in the pretrial and trial record: pretrial and at trial, every witness -- the detectives and identification witnesses -- testified under oath that the identification witnesses were shown only two photo lineups. One lineup contained Mr. Smith's picture, and the other contained a Mr. Freeman's picture. At trial, the detectives specifically testified that the witnesses were not shown a lineup containing Mr. Mosley's picture. There was no third Mosley lineup, and thus the circuit court's premise for denying relief is incorrect. Ms. Lowe identified Mr. Mosley because he was the man she saw. This evidence would have