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 resulted in Mr. Smiths' acquittal. Relief is required.
ARGUMENT
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.
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.
On March 7, 1991, an
evidentiary hearing was held in Mr. Smith's case pursuant to this Court's
order. On April 29, 1991, Assistant
State Attorney Paul Zacks left a message for Mr. Smith's counsel to call Mr.
Zacks. Subsequently, Martin McClain,
Chief Assistant CCR, returned the call.
At that time, Mr. Zacks said that Judge Tyson had telephoned Mr. Zacks
and discussed Mr. Smith's case. As a
result of that discussion, Mr. Zacks was assigned to draft an order denying Mr.
Smith relief. Shortly thereafter, Mr.
Smith's counsel received via facsimile a draft order and an accompanying cover
letter detailing the timetable Judge Tyson and Mr. Zacks had worked out.
After learning of the ex
parte communication between Judge Tyson and the State, counsel for Mr. Smith
filed a Motion to Disqualify Judge, requesting that Judge Tyson recuse himself
from Mr. Smith's case because of the ex parte communication (PC-R. 265-66). Counsel for Mr. Smith also filed Objections
to Draft Order, arguing:
On May 7, 1991, defense counsel received the
State's draft of a proposed order denying 3.850 relief in the above entitled
matter. The proposed order and its
cover letter accompany this pleading.
Defense counsel's understanding is that the Order was drafted by the
State after Judge Tyson called Assistant State Attorney Paul Zacks and
discussed the matter. Neither Mr. Smith
nor undersigned counsel were privy to that discussion. Undersigned counsel had requested that any
post-hearing discussions about the case not be ex parte and that such
discussions be conducted with all parties present. Counsel further suggested that the discussions could be
telephonic but that a court reporter should be on the line in order to put the
discussions on the record.
(PC-R. 279). Judge Tyson
did not rule on the Objections to Draft Order.
On June 6, 1991, Judge Tyson denied the Motion to Disqualify (PC-R.
283), and, the next day, June 7, 1991, signed verbatim the State's order (PC-R.
284-87).
Judge Tyson's actions in
conducting ex parte discussions with the State regarding the merits of Mr.
Smith's case denied Mr. Smith his right to have his case adjudicated by an
impartial tribunal, in violation of Florida law, due process, equal protection,
and the Eighth and Fourteenth Amendments.
The ex parte communication between Judge Tyson and the State denied Mr.
Smith "the cold neutrality of an impartial judge":
The judicial practice of requesting one party
to prepare a proposed order for consideration is a practice born of the
limitations of time. Normally, any such
request is made in the presence of both parties or by a written communication
to both parties. We are not unmindful
that in the past, on some occasions, judges, on an ex parte basis, called only
one party to direct that party to prepare an order for the judge's signature. The judiciary, however, has come to realize
that such a practice is fraught with danger and gives the appearance of
impropriety. See generally
Steven Lubet, Ex Parte Communications:
An Issue in Judicial Conduct, 74 Judicature 96, 96-101 (1990).
Cannon 3A(4) of Florida's Code of Judicial
Conduct states clearly that
A judge should accord to every person who is legally
interested in a proceeding, or his lawyer, full right to be heard according to
law, and except as authorized by law, neither initiate nor consider ex parte or
other communications concerning a pending or impending proceeding.
Fla. Bar Code of
Jud. Conduct, Canon 3(A)(4)(emphasis added).
Nothing is more dangerous and destructive of the impartiality of the
judiciary than a one-sided communication between a judge and a single
litigant. Even the most vigilant and
conscientious of judges may be subtly influenced by such contacts. No matter how pure the intent of the party
who engages in such contacts, without the benefit of a reply, a judge is placed
in the position of possibly receiving inaccurate information or being unduly
swayed by unrebutted remarks about the other side's case. The other party should not have to bear the
risk of factual oversights or inadvertent negative impressions that might
easily be corrected by the chance to present counter arguments. As Justice Overton has said in this Court:
[C]anon [3A(4)] implements a fundamental requirement
for all judicial proceedings under our form of government. Except under limited circumstances, no party
should be allowed the advantage of presenting matters to or having matters
decided by the judge without notice to all other interested parties. This canon was written with the clear intent
of excluding all ex parte communications except when they are expressly
authorized by statutes or rules.
In re Inquiry
Concerning a Judge: Clayton, 504 So. 2d 394, 395 (Fla.
1987).
We are not here concerned with whether an ex
parte communication actually prejudices one party at the expense of the
other. The most insidious result of ex
parte communications is their effect on the appearance of the impartiality of
the tribunal. The impartiality of the
trial judge must be beyond question. In
the words of Chief Justice Terrell:
This Court is committed to the doctrine that every
litigant is entitled to nothing less than the cold neutrality of an impartial
judge. . . . The exercise of any other policy tends to discredit the judiciary
and shadow the administration of justice.
. . . The attitude of the judge and the atmosphere of
the court room should indeed be such that no matter what charge is lodged
against a litigant or what cause he is called on to litigate, he can approach
the bar with every assurance that he is in a forum where the judicial ermine is
everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less
than this.
State ex rel.
Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939). Thus, a judge should not engage in any
conversation about a pending case with only one of the parties participating in
that conversation. Obviously, we
understand that this would not include strictly administrative matters
not dealing in any way with the merits of the case.
Rose v. State, 17 F.L.W. S319, 320 (Fla.
May 28, 1992)(emphasis added). In Rose,
this Court reversed the denial of Rule 3.850 relief because it appeared that
the State and trial judge had ex parte communications during which the State
was directed to prepare the order denying relief. In Mr. Smith's case, the State has admitted there was ex parte
communications between Judge Tyson and Mr. Zacks. Moreover, unlike Rose where the order was a summary denial
of relief and where no evidentiary hearing had been held, in Mr. Smith's case,
the judge and assistant state attorney had ex parte communication regarding an
issue upon which an evidentiary hearing had been held and which therefore
required the judge to resolve disputed facts.
As in Rose, this conduct requires a reversal and a new hearing on
Mr. Smith's claim.[1]
In Mr. Smith's case, Judge
Tyson engaged in ex parte discussions with the State regarding the ultimate
issue to be decided -- the merits of Mr. Smith's claim -- and permitted the
State to resolve (in its favor) the factual matters presented at the
evidentiary hearing. Mr. Smith was
entitled to impartial factfindings, not findings made by the opposing party:
The attorney general of the state is not a
disinterested expert in a criminal case but, in fact, is an arm of the
prosecution. See section 16.01,
Fla. Stat. (1989). Ex parte
communication between a trial judge and assistant attorney general concerning a
pending criminal case is totally inappropriate and will mandate reversal if: 1) The defense has requested that the trial
judge recuse himself or has requested a mistrial which is denied; 2) where the
defendant can demonstrate that there was prejudice as a result of the improper
communication; or 3) the judge is sitting as the trier of fact. See Livingston v. State, 441
So. 2d 1083 (Fla. 1983); State v. Steele, 348 So. 2d 398 (Fla. 3rd DCA
1977).
Love v. State, 569 So. 2d 807, 810 (Fla.
1st DCA 1990). Here, Judge Tyson -- the
trier of fact -- engaged in ex parte communication with the Assistant State
Attorney -- counsel for the opposing party.
Mr. Smith requested that Judge Tyson recuse himself, but the request was
denied. Judge Tyson's conduct therefore
"mandate[s] reversal." Love.
The Code of Judicial Conduct
emphasizes the importance of an independent and impartial judiciary in
maintaining the integrity of the fact-finding process. See Code of Judicial Conduct, Canon
1, Canon 2A, Canon 3A(4), Canon 3C.
Canon 3A(4) emphasizes, "A judge should accord to every person who
is legally interested in a proceeding, or his lawyer, full right to be heard
according to law, and, except as authorized by law, neither initiate nor
consider ex parte or other communications
concerning a pending or impending proceeding." (Emphasis added).[2]
When a court is required to make findings of fact, "the
findings must be based on something more than a one-sided presentation of the
evidence . . . [and] require the exercise by an impartial tribunal of its
function of weighing and appraising evidence offered, not by one party to the
controversy, but by both." Simms
v. Greene, 161 F.2d 87, 89 (3rd Cir. 1947). A death-sentenced inmate deserves at least as much.
[T]he reviewing court deserves
the assurance [given by even-handed consideration of the evidence of both
parties] that the trial court has come to grips with apparently irreconcilable
conflicts in the evidence... and has distilled therefrom true facts in the
crucible of his conscience.
E.E.O.C. v. Federal Reserve
Board of Richmond, 698 F.2d 633, 640-41 (4th
Cir. 1983), quoting Golf City, Inc. v. Sporting Goods, Inc., 555 F.2d
426, 435 (5th Cir. 1977). Rule 3.850
proceedings are governed by the principles of due process. Holland v. State, 503 So. 2d 1250
(Fla. 1987). Due process cannot be
squared with the treatment that the motion to vacate received in this capital
case. It is one thing for a court to
adopt a proposed order on ministerial or procedural matters. It is quite another for a court to adopt
wholesale one side's findings on the merits of what is at issue in the
action. Mr. Smith was entitled to a
full and fair independent resolution from the court; here, the claim was
resolved by his party opponent. Courts
have criticized such procedures consistently -- the taste of unfairness remains
in such cases because findings should be made by the court, not "written
by the prevailing party to a bitter dispute." Amstar Corp. v. Domino's
Pizza, Inc., 615 F.2d 252, 258 (5th Cir. 1980). See also Love v. State; Shaw v. Martin,
733 F.2d 304, 309 n.7 (4th Cir. 1984).
Given the heightened scrutiny which the Eighth Amendment requires in
capital proceedings, a resolution such as the one involved in this case is even
more distasteful.
Mr. Smith was entitled to all that due process allows -- a full and
fair hearing by the court on his claims.
Rose; Cf. Holland v. State, 503 So. 2d 1250 (Fla.
1987). These rights were abrogated by
the circuit court's adoption of the state's factually and legally erroneous
order[3]. This Court ordered a full and fair
resolution of Mr. Smith's well-founded innocence claim; however, Mr. Smith was
denied an impartial tribunal. This case
should be remanded for a full and fair evidentiary hearing before a new circuit
judge for a proper resolution of the issues.
The circuit court denied the Motion to Disqualify as "legally
insufficient" (PC-R. 283). This
ruling was incorrect. The Florida Rules
of Criminal Procedure provide for the disqualification of a judge as follows:
RULE 3.230.
DISQUALIFICATION OF JUDGE
(a) The State or the defendant may move to
disqualify the judge assigned to try the cause on the grounds: that the judge is prejudiced against the
movant or in favor of the adverse party; that the defendant is related to the
said judge by consanguinity or affinity within the third degree; or that said
judge is related to an attorney or counselor of record for the defendant or the
state by consanguinity or affinity with the third degree; or that said judge is
a material witness for or against one of the parties to said cause.
(b) Every motion to disqualify shall be in
writing and be accompanied by two or more affidavits setting forth facts relied
upon to show the grounds for disqualification, and a certificate of counsel of
record that the motion is made in good faith.
(c) A motion to disqualify a judge shall be
filed no less than 10 days before the time the case is called for trial unless
good cause is shown for failure to so file within such time.
(d) The judge presiding shall examine the
motion and supporting affidavits to disqualify him for prejudice to determine
their legal sufficiency only, but shall not pass on the truth of the facts
alleged nor adjudicate the question of disqualification. If the motion and affidavits are legally
sufficient, the presiding judge shall enter an order disqualifying himself and
proceed no further therein. Another
judge shall be designated in a manner prescribed by applicable laws or rules
for the substitution of judges for the trial of causes where the judge
presiding is disqualified.
(Emphasis added).
A party may present a motion to disqualify at any point in the
proceedings as long as there remains some action for the judge to take. After Mr. Smith learned of the ex parte
communication, Mr. Smith filed a motion to disqualify and objections to draft
order. Mr. Smith filed his motion and objections prior to the circuit court's
ruling on Mr. Smith's motion to vacate.
Mr. Smith's motion met all of the requirements of a motion to
disqualify. It contained: (l) a verified statement of the specific
facts which indicate a bias or prejudice requiring disqualification; (2) two
affidavits; and (3) a certificate of good faith by counsel (PC-R. 265-82). The motion to disqualify was filed as soon
as Mr. Smith's counsel learned of the ex parte communication between Judge
Tyson and Mr. Zacks, and thus was timely.
The motion was legally sufficient on its face.
This Court has repeatedly held that where a movant meets these
requirements and demonstrates, on the face of the motion, a basis for relief, a
judge who is presented with a motion for disqualification "shall not
pass on the truth of the facts alleged nor adjudicate the question of
disqualification." Suarez
v. State, 527 So. 2d 191 (Fla. 1988) (emphasis added).[4] To establish a basis for relief a movant:
need only show "a well grounded fear that he will
not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question
of what feeling resides in the affiant's mind and the basis for such feeling." State ex rel. Brown v. Dewell, 131
Fla. 566, 573, 179 So. 695, 697-98 (1938).
See also Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA
1981). The question of
disqualification focuses on those matters from which a litigant may reasonably
question a judge's impartiality rather than the judge's perception of his
ability to act fairly and impartially.
Livingston v. State, 441 So. 2d
1083, 1086 (Fla. 1983), rehrg. denied, 443 So. 2d 998 (Fla.
1984)(emphasis added). Mr. Smith's
Motion to Disqualify clearly showed "a well-grounded fear" that Judge
Tyson could not act impartially: the
motion alleged that Judge Tyson engaged in an ex parte discussion with the
State regarding the resolution of Mr. Smith's claim.
The focus of inquiry is limited to consideration of the reasonable
fears of the movant that the judge cannot provide a fair and impartial
order. This Court has emphasized:
What is important is the party's reasonable belief
concerning his or her ability to obtain a fair trial. A determination must be made as to whether the facts alleged
would place a reasonably prudent person in fear of not receiving a fair and
impartial trial.
Livingston at 1086-87
(emphasis added). See also
Suarez, 527 So. 2d at 191; Crosby v. State, 97 So. 2d 181, 183
(Fla. 1957). Based on the ex parte
communication, Mr. Smith reasonably questioned Judge Tyson's impartiality. Mr. Smith's fear that the circuit court was
not impartial was not only reasonable but realized when Judge Tyson signed the
State's order despite Mr. Smith's timely objection. In Rose, this Court reasoned, "We are not concerned
with whether an ex parte communication actually prejudices one party at
the expense of the other. The most
insidious result of ex parte communications is their effect on the appearance
of the impartiality of the tribunal.
The impartiality of the trial judge must be beyond question." Rose, 17 F.L.W. at 320 (emphasis in
original).
Disqualification was proper in this case. As stated above, the circuit court had at least one ex parte
communication with the State. In Rose,
this Court ruled, "a judge should not engage in any conversation
about a pending case with only one of the parties participating in that
conversation." 17 F.L.W. at 320
(emphasis in original). Rose
establishes that the circuit court's action in Mr. Smith's case was improper.[5] This Court must remand Mr. Smith's case for
a full and fair hearing before a new judge.
Rose; Suarez.
B. The circuit court denied Mr. Smith
his right to a full and fair hearing when it precluded Mr. Smith from
introducing relevant evidence.
This Court ordered the trial court to "conduct an evidentiary
hearing to evaluate new evidence."
Smith v. Dugger, 565 So. 2d at 1297. Earlier in the opinion, the Court noted that Chiquita Lowe had
identified Eddie Lee Mosley as the man she saw the night of the offense and
that Mosley was "a former suspect who has since been implicated in
numerous rape/murders and sexual batteries occurring during the same time
period and in the same geographical area as the instant crime." 565 So. 2d at 1296. Despite this Court's directive to
"conduct an evidentiary hearing to evaluate new evidence" and this
Court's mention that other evidence corroborated Ms. Lowe's identification of
Mr. Mosley, the trial court limited Mr. Smith's presentation to the testimony
of Ms. Lowe. Mr. Smith was not provided
a full and fair hearing on his newly discovered evidence claim.
The trial court refused to 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 regarding Mosley's sexual assault on her, Lisa Wiseman's affidavit
regarding Mosley's sexual assault on her, a circuit court order regarding the
involuntary hospitalization of Mr. Mosley, a motion to appoint additional
experts in State v. Mosley, and five police offense reports on Ms.
Mosley (Defense Exs. A-P). The trial
court also refused to admit Dr. Hathaway's testimony regarding Mr. Smith's
eyesight (PC-R. 92-103). The trial
court thus considered Ms. Lowe's testimony in a vacuum. Ms. Lowe's testimony that Mr. Smith was not
the man she saw the night of the offense was only part of Ms. Lowe's affidavit
upon which this Court ordered a hearing.
The other part was that Mr. Mosley was the man Ms. Lowe saw that
night. The evidence the circuit court
refused to admit corroborated Ms. Lowe's testimony that Mr. Mosley was the man
she saw, and that Mr. Smith was not that man.
Ms. Lowe's testimony as to Mr. Smith not being the man she saw would
have been corroborated by Dr. Hathaway's testimony if the trial court had
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 (PC-R.
94) and that his uncorrected vision is off the eye charts at 20/400 (PC-R.
98). 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.
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. 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" (Def. Ex. B). 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 forcible sexual batteries between
1973 and 1987 and is a suspect in numerous others (Def. Exs. A, B, H, I, L, M,
N, O, P).
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 (Def. Exs. C, D, E, F, G). 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 (Def. Exs. C-G).
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 (Def. Exs. C, E, G, L, P).
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 (Def. Ex. L). Upon his arrest, he
also implicated himself in nine murders (Id).
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 asked the victim where he could buy some drugs (Def. Ex. H). In 1984, Mosley was charged with a sexual
battery which occurred in a vacant field (Def. Ex. 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 (Def. Ex. N). The records also include an order for
involuntary hospitalization (Def. Ex. J) that stated Mr. Mosley suffered from
sexual preoccupation and overt homosexuality.
In addition, there were many mental health evaluations (Def. Exs. 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 (Def. Exs.
C, D).
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 (Def. Ex. F). 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).
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).
The trial court erred in refusing to admit and consider this
evidence. The evidence was relevant to
Mr. Smith's claim and therefore admissible.
See State v. Savino, 567 So. 2d 892 (Fla. 1990)("a
defendant may introduce similar fact evidence of other crimes or `reverse Williams
rule evidence' for exculpatory purposes if relevant"). The trial court's refusal to admit this
evidence denied Mr. Smith a full and fair hearing. This Court should reverse and order a new evidentiary hearing at
which Mr. Smith may present and have considered all of the evidence supporting
his claim.
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.
This Court found that the State's case against Mr. Smith hinged 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. Smith v. Dugger, 565 So. 2d 1293,
1295 (Fla. 1990). Discussing Ms. Lowe's
role at trial, this Court explained that "[o]f the witness identifications
presented at trial, that of Lowe clearly was the most credible." Id.
No physical evidence implicated Mr. Smith -- there were no fingerprints,
no blood stains, no serology evidence and no fiber particles. The State's case consisted of the three
identification witnesses of whom Ms. Lowe was clearly the key.
Mrs. 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 -- ultimately resolving
that doubt based upon Ms. Lowe's testimony.
It is from this perspective that this Court remanded Mr. Smith's case
based upon Ms. Lowe's affidavit in which she swore "that the man she saw was
not Smith but Eddie Lee Mosley, a former suspect who has since been implicated
in numerous rape/murders and sexual batteries occurring during the same time
period and in the same geographical area as the instant crime." Smith v. Dugger, 565 So. 2d at 1296.
What was revealed in post-conviction -- and what the Circuit Court
heard at the evidentiary hearing -- would have resolved the jury's doubts in
Mr. Smith's favor. Ms. Lowe has now
provided sworn testimony 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 explained that the
photograph of another suspect in the crime, Eddie Lee Mosley, is the man she
saw and that she wrongly identified Mr. Smith.
Ms. Lowe did not waiver from her sworn affidavit but gave compelling
testimony which only confirmed what she had said in the affidavit.[6] Through Ms. Lowe's testimony, Mr. Smith has
proven his entitlement to relief -- that Ms. Lowe's testimony at the
evidentiary hearing "had it been introduced at the trial, would have probably
resulted in an acquittal." Jones
v. State, 591 So. 2d 911, 916 (Fla. 1991).
A. Ms. Lowe's Hearing Testimony
Ms. Lowe's[7] testimony at
the evidentiary hearing conclusively establishes what the defense counsel at
trial was attempting to show -- that Mr. Smith was the wrong man. The State at the hearing, and the circuit
court judge in the order denying relief, made no suggestions, allegations or
findings that Ms. Lowe was now lying about who she believes she saw on April
14, 1985. In fact, the circuit court
judge in the order denying relief found that Ms. Lowe "became convinced
that Mosley was the individual she had seen at her home near the time of the
homicide" (PC-R. 285). This is not
a case in which the lower court has found the recanting witness, Ms. Lowe, to
be lying. To the contrary, the court
found that she is "convinced" that Mr. Smith is not the man she saw
on the night of the murder and that it was Mr. Mosley instead. This is obvious to anyone who reviews the
transcript of Ms. Lowe's testimony. Ms.
Lowe unhesitantly testified that she still recalls very well the moment the man
flagged her down on April 14, 1985 (PC-R. 50).
Ms. Lowe became "convinced" that Mr. Smith was not the
individual she saw on the night of the murder long before she gave her
affidavit in 1989. Prior to trial, Ms.
Lowe had never seen Mr. Smith in person.
She had only seen a photograph of Mr. Smith in a photo lineup. When she saw Mr. Smith in the courtroom, she
became "convinced" that Mr. Smith was the wrong man. At the evidentiary hearing, she testified:
Only thing I remember is when I walked into the
courtroom . . . I seen Mr. Frank [Smith] standing up there. I had my -- they kept saying is that the
man, but I had my doubts that was the man because the man I seen that night he
was muscular, big and Mr. Frank [Smith] was not."
(PC-R. 65). Ms. Lowe testified that despite her doubts
she identified Mr. Smith at trial as the man she saw (PC-R. 79). When asked why she didn't tell the court and
jury that she made a mistake, she testified:
A. No, I couldn't feel like that. Because -- I couldn't. I was confused.
Q. Were you worried while you were testifying
about whether or not Mr. Smith was the right person?
A. I was confused.
THE COURT: I didn't hear the answer?
THE
WITNESS: Confused.
BY MR. MCCLAIN:
Q. Can you tell me as best you can what you are
thinking? What was it that you were
confused about?
A. That they saying they got the man. The man needs to be off the street. He's dangerous and they kept saying
"this is the man," you just have to say "this is the man because
he need to be off the street." And
I was thinking about the little girl's mama, that she's going through this,
that had happened with her daughter and everything. I was just confused.
Q. Did you feel a lot of weight on your shoulders?
A. Yes.
Q. When you were in the courtroom and you looked
at Frank Lee Smith, did you have nagging doubts in the back of your head?
A. Yes.
* * *
BY MR. MCCLAIN:
Q. When you looked at Mr. Smith in the courtroom,
what were you thinking?
A. What they told me, "the man was dangerous
and he needs to be off the street."
Q. What were you thinking about his fitting the
description?
A. He didn't fit that description that I sketched
out.
Q. When you got off the witness stand, what did
you think?
A. Terrible.
(PC-R. 79-80). Ms. Lowe's doubt about her identification of
Mr. Smith was present long before 1989.
At trial, she knew that Mr. Smith was not the man she saw -- that he
didn't fit the description she sketched out.
(Id).
She testified that when Mr. Walsh, an investigator with undersigned
counsel's office, approached her on December 10, 1989 and showed her a
photograph of Mr. Mosley she knew that:
This is the one that flagged me down in the car...
[I]t brought moments back of the incident when it happened. ... A warm feeling came over me.
(PC-R. 52). When asked if she was certain Mr. Mosley was
the man she saw, Ms. Lowe testified that she was "very, very, very,
certain" (PC-R. 52; see also PC-R. 74-75 and 84).
Ms. Lowe testified that once the police arrested Mr. Smith, she was
under "a lot of pressure" to identify him as the man she saw that
night (PC-R. 63-64, 71). When
questioned about her identification of Mr. Smith from the photo lineup, she
testified:
They asked me is one of these the guy. I said no, but I said that his hair was like
the guy I seen that night.
(PC-R. 71). Ms. Lowe admitted picking out Mr. Smith from
the photo lineup but was emphatic that she told the detectives "that the
hair was like the guy that [she] saw" (PC-R. 60).
Ms. Lowe explained that Detectives Scheff and Amabile pressured her
to make an identification of Mr. Smith at the photo lineup (PC-R. 63). She testified that she was under:
"A lot of pressure ... from the police officer
that came out there telling me that the man is dangerous and if he stays out
there, he's going to do it to someone else.
So I was up on a lot of pressure."
(PC-R. 62-63).
She explained further:
I only told them that the hair look like the man that
did it. And when I say the hair that
looks like the man that did it, they kept pushing me "Is this the man, Is
this the man, Is this the man." ...
They kept saying that.
(PC-R. 81).
Ms. Lowe also testified that she felt pressured by the prosecutor
(PC-R. 63). She specifically recalled
being pressured to say that the man she saw that night had a scar under his eye
(PC-R. 53). Of course, Mr. Smith has a
significant noticeable scar under his right eye (R. 706).[8] Ms. Lowe said she was pressured to testify
at trial about the scar but refused to do so (PC-R. 53). In fact, the circuit court judge at the
evidentiary hearing, noticing the scar under Mr. Smith's eye, asked Ms. Lowe
about this:
The Court:
Ma'am, did you say the person that you saw did or did not have a scar?
The Witness:
The man that learned in my car?
No scar.
The Court: Did
not have a scar?
The Witness:
No scar.
(PC-R. 87-88).
Ms. Lowe testified that she felt pressure from not only the state
but also from her neighborhood, people she knew, and friends (PC-R. 78). Moreover, Ms. Lowe was constantly thinking
about the victim:
I know that little girl got killed. I know she had got killed and that's all
that was going through my mind, the little girl got killed.
(PC-R. 86). As a result of all this pressure, Ms. Lowe
was, in her words, "confused" when she finally saw Mr. Smith in
person and realized he was not the man she saw that night (PC-R. 79). At the time of Mr. Smith's trial, Ms. Lowe
was only 19-20 years old (PC-R. 77).
Ms. Lowe's hearing testimony left no doubt that at Mr. Smith's trial
she realized that Mr. Smith was the wrong man.
On December 10, 1989, this was only confirmed when she saw Mr. Mosley's
photo and "became convinced that Mosley was the individual she had seen at
her home near the time of the homicide" (PC-R. 285)(Circuit Court order
denying relief). The state failed to
establish -- in fact, never attempted to show -- that Ms. Lowe had a motive to
lie at the evidentiary hearing.
Although the State questioned her about having been convicted of a theft
charge subsequent to Mr. Smith's trial, the State never tried to establish nor
argue that Ms. Lowe has now decided to fabricate her testimony as a result of
that conviction. Moreover, Ms. Lowe
openly admitted that she had been convicted of a theft charge (PC-R. 73). The record clearly establishes that Ms.
Lowe's theft conviction is in no way related to her testimony that Mr. Smith is
the wrong man. She testified
truthfully, and, as the circuit court found, is "convinced" that Mr.
Mosley and not Mr. Smith is the man she saw that night.
In light of Ms. Lowe's unimpeachable recantation, the State
attempted to establish that Ms. Lowe is merely confused and that she had, at
the time of the pretrial investigation, been shown a photo lineup containing
Mr. Mosley's photo which she failed to recognize. When asked if she had been shown a photograph of Mr. Mosley pre-trial
she emphatically stated she would recognize Mosley if she saw him (R. 69), that
"they didn't show me no picture of him," (PC-R. 70) and that
"the only thing that was close to the guy that I seen that night" was
the composite sketch they drew (PC-R. 70).
Moreover, Ms. Lowe's testimony at the evidentiary hearing was consistent
with her trial testimony that she had only been shown two photo lineups -- the
one containing Mr. Smith's photograph and another containing a photograph of a
previous suspect, a Mr. Freeman. When
questioned about being shown photographs other than the photo lineup containing
Mr. Smith's photograph, Ms. Lowe testified:
I do know that they did show me some more photographs
because it was a guy in the photographs they kept questioning me about. I don't know him personally, but I knew him.
(PC-R. 69). Ms. Lowe testified at trial about this same
photo lineup containing a photograph of Mr. Freeman, a man from the
neighborhood that she recognized (R. 684).
Although she recognized Mr. Freeman, she said that he was not the man
she saw on the night in question (R. 684).
At trial, as at the evidentiary hearing, Ms. Lowe testified about only
those two photo lineups -- there was no third photo lineup.
B. The "Mysterious" Mosley Photo Lineup
Ms. Lowe is not the only one who had, prior to the evidentiary
hearing, testified under oath that there were only two photo lineups shown to
the witnesses. Both Detectives Scheff
and Amabile gave clear unambiguous testimony at Mr. Smith's trial that the
witnesses, Ms. Lowe, Mr. Davis, and Mrs. McGriff, were shown only two photo
lineups -- one containing 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, Mr. Davis testified at trial that he viewed 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). Finally, all of the police
reports in the case mention only the two photo lineups (PC-R. 159-60). The only conclusion to be drawn from this
unambiguous evidence is that there were only two photo lineups shown to the
witnesses -- there was no photo lineup containing Mr. Mosley's photograph. Ms. Lowe, Mr. Davis and Ms. McGriff do not
mention it at trial or in their depositions.
Detectives Scheff and Amabile swear at trial and in their depositions
that there was no third photo lineup.
There are no notations of a third photo line-up anywhere in the homicide
file (PC-R. 160). Additionally, the
prosecutor never produced a third photo lineup at trial.
Despite this overwhelming evidence that only two photo lineups were
conducted, the State presented at the evidentiary hearing the completely
contradictory testimony of Mrs. McGriff and Detectives Scheff and Amabile that
there was a third photo lineup containing Mr. Mosley's photograph. Notably absent from the State's case at the
evidentiary hearing was any testimony from Mr. Dimitroleas concerning this
Mosley photo lineup. Surely, as the
prosecutor, he would have been aware of the photo lineup if it had been
conducted. Mr. Dimitroleas introduced
the Freeman photo lineup into evidence at Mr. Smith's trial. His failure to do the same with this
mysterious Mosley photo lineup and his absolute silence concerning this lineup
at the evidentiary hearing is clearly damning of the State's theory that such a
lineup was conducted. None of these
witnesses provide any explanation for this significant contradiction in their
testimony at trial and at the evidentiary hearing and the state offered no
theory on how this photo lineup failed to surface until seven years after the
fact. Nevertheless, the circuit court
relied upon this "mystery" photo lineup to discredit Ms. Lowe's
testimony without addressing the overwhelming pre-hearing evidence which
established that there was no third photo lineup containing Mr. Mosley's
photograph.
In an attempt to establish that there was a third photo lineup
containing Mr. Mosley's photograph, the State called the victim's mother, Mrs.
McGriff. Mrs. McGriff's testimony
concerning this "mysterious" photo lineup was confusing at best:
Q. At anytime did the police come to you in those
days after your daughter was killed and show you photographs?
A. Yes.
Q. Do you remember how many times or how many
photographs they may have showed you?
A. Oh, about two or three.
Q. Did they show you a large group of photographs
or was it one at a time?
A. Yes, they showed me one at a time and then they
showed me large size.
Q. Okay.
And on any of those occasions, did the police officers show you a
picture of Eddy Lee Mosley?
A. Yes.
Q. Was it in a group or single photo, do you
remember?
A. It was in a group.
(PC-R. 113). On cross-examination, counsel attempted to
clarify Mrs. McGriff's answer:
Q. Now, you indicated that they showed you two or
three photos, or was that two or three they showed you?
A. They showed me about two or three photo --
Well, they asked me to look through the pictures.
Q. They gave you a couple of photos, gave them to
you and asked you to look through them?
A. Uh-huh.
Q. And that was all the photos that the police
ever showed you or did they show you more later, or do you remember?
A. No, I don't remember.
Q. Okay.
Did they also show you -- I mean, if you don't remember just say you
don't remember. I'm just trying to be
sure. I understand what you're saying.
Do you remember,
did they actually show you a line up at one point in time with about six
pictures in it?
A. No, there wasn't no six pictures. It was like a photo book, do you know how
you get a photo book?
Q. Yes.
A. I looked through the photo book and skimmed
through to look in the photo book.
Q. So they showed you a photo book?
A. Yes.
Q. And it was a photo book with more than six
pictures in it?
A. Yes.
Q. And when did they show you the photo book?
A. Oh, gee.
I just don't remember, but I think right after - right after my baby's
death, I think, I'm not for sure, right after.
I'm not sure.
Q. You mean like the next day?
A. Yeah.
Q. And did they show you photo of Frank Lee Smith
that day?
A. Did they show me?
Q. Yes.
A. No, I picked him out myself.
Q. In that book?
A. Yes.
Q. And that was the next day after your daughter's
death?
A. Yes.
Q. Was Eddy Lee Mosley in that photo book?
A. Yes.
Q. Did the police specifically say "how about
this guy?"
A. No.
Q. But you saw his photo in there?
A. Yes.
Q. Did you tell the police that that was not the
person?
A. Yes.
Q. You just -- Did you -- As you went through the
photo book, did you say "this isn't the person, this isn't the
person?"
A. Yes.
Q. And then when you got to Frank Lee Smith you
said "this is the person?"
A. Yes.
(PC-R. 118-121). Obviously, Mrs. McGriff does not remember
what happened and does not know what she is talking about. Prior to the evidentiary hearing, neither
she nor Detectives Scheff or Amabile ever mentioned Mrs. McGriff viewing
photographs out of a photo book.
Moreover, their testimony has always been that Mrs. McGriff
identified Mr. Smith from a photo lineup and not while perusing a photo book
(R. 642, McGriff; R. 985, Scheff; R. 908 Amabile). At the evidentiary hearing, both Detectives Scheff and Amabile
stated that Mrs. McGriff was shown a photograph of Mr. Mosley in a photo lineup
and not a photo book (PC-R. 148, Scheff
and 185-6, Amabile). Detective
Amabile who sat through Mrs. McGriff's testimony at the evidentiary hearing
admitted that her memory as to what transpired and when it transpired was
different from his memory (PC-R. 198).
Although Mrs. McGriff, Detective Scheff, and Detective Amabile have
different stories concerning how and when Mr. Mosley's photograph was shown to
Mrs. McGriff, they all testified that she identified his photograph as Mr.
Mosley and stated he was her cousin and not the man she saw that night. In fact, Detective Amabile testified that he
remembered this specific photo lineup because Mrs. McGriff had stated that Mr.
Mosley was her cousin. The problem with
this testimony is that as with the testimony about the existence of a third
photo lineup containing Mr. Mosley's photograph, their prior sworn testimony is
in direct contradiction. At no time pre-trial
or at trial did anyone identify Mr. Mosley as a relative of Mrs. McGriff -- and
they were all asked whether any of her relatives were suspected of the
murder. In answer to the direct
question, the only relative the detectives ever identified pre-trial or at
trial was Edwin McGriff, another cousin of Mrs. McGriff.
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.[9] He specifically did not identify Mr. Mosley
as a relative of Mrs. McGriff. After explaining
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 chid, 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 never said he was eliminated by all three
witnesses through a photo lineup or that he was a cousin of Mrs. McGriff. In fact, Detective Scheff testified that he
did not show a photo lineup containing Mr. Mosley's picture to any of
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).
At his 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). The same Detective Amabile, seven years
later, testified under oath that he doesn't remember much about the photo
lineups except for the instance when Mrs. McGriff identified Mr. Mosley as her
cousin:
Q. Do you recall what photo lineups were shown the
witnesses? And let me clarify when I
use the word "witnesses," I am referring to Dorothy McGriff, Chiquita
Lowe and Gerald Davis?
A. Unfortunately I would have to answer yes
because of hearing the prior [evidentiary hearing] testimony [of Mr. McGriff
and Detective Scheff]. What I recall, I
recalled it more than one photo lineup being shown. I know from testimony today it was also mostly the reason I
stated to Mr. Zacks, that I recall Eddy Lee Mosley is - that's how I found out
that he was related to Dorothy McGriff.
(PC-R. 185-86). Of course, this testimony is in direct
contradiction with his pre-trial and trial testimony that the only relative of
Mrs. McGriff who was a suspect in the case was Edwin McGriff, a cousin. 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).
The overwhelming credible evidence establishes that the witnesses
were never shown a photo lineup of Mr. Mosley and that the detectives never
mentioned his name to Mrs. McGriff and, therefore, never learned that he was
related to Mrs. McGriff. The testimony
the State presented on this issue is contradicted by every sworn statement made
pre-trial and at trial by the State's own witnesses, and is contrary to the
detectives' homicide report and files.
When Detective Scheff was asked if he had any written documentation in
the homicide file reflecting the Mosley lineup he testified:
A. I don't think so. I might. I would have to
look through the file.
Q. With the file that you brought, is there any
indication in there of showing a photo of Eddy Lee Mosley to any of the
witnesses?
A. The file is -- I just brought this so I could
have some hope of remembering this stuff.
Q. In what you brought that you thought would help
you, and with your memory, is there anything to indicate you showed a photo
lineup containing Eddy Mosley?
A. No.
THE COURT: Showed who?
THE WITNESS: Eddy Lee Mosley.
MR. MCCLAIN: A photo lineup containing Eddy Lee Mosley.
THE COURT: To whom?
BY MR. MCCLAIN:
Q. To --
A. Anybody.
Q. Anybody. To these three witnesses that we've been talking about?
A. No.
(PC-R. 159-60)(emphasis
added). Moreover, Detective Scheff had
no explanation for this glaring contradiction between his pre-trial and trial
testimony and his testimony at the evidentiary hearing:
Q. I'm going to hand you pages from your trial
testimony. I have three pages to show
you and starting with was Eddy Lee Mosely (sic) a suspect. If you can just read from there on until the
middle of the third page [R. 1024-26].
A. I am sorry read to where?
Q. Let me show you.
A. Wait a minute, which is the first page?
Q. Eddy Mosely's on the first page.
A. Was Eddy Lee Mosely ever a suspect - Do you
want me to read it out loud?
Q. You can read it to yourself.
A. Okay.
Q. In those three pages, does that help refresh
your recollection as to your trial testimony?
A. Yes.
Q. You were asked out a series of suspects by the
prosecutor --
A. Yes.
Q. -- if Eddy Lee Mosely was one of those
suspects?
A. Yes.
Q. In fact, he read you a list of names and asked
you for a response?
A. That's correct.
Q. At the end he asked you were any of those names
he read to you were shown to the witnesses?
A. Yes.
Q. And you said other than Freeman --
A. Yes, I'm assuming that's accurate. I have no reason to not doubt it's accurate.
Q. Is that consistent with your testimony here
today?
A. No it's not.
MR.
MCCLAIN: I have nothing further, Your
Honor.
THE COURT: Re-direct?
Could you repeat that question and answer again that you just asked?
MR.
MCCLAIN: Was that consistent with your
testimony here today?
THE COURT: No, the last question?
MR.
MCCLAIN: The question was, were any of
these people ever shown to any of the witnesses in either a photo or live line-up
(sic), people whose names I just read off other than Freeman. Answer, other than Freeman, no.
THE COURT: Go ahead.
MR. ZACKS: Nothing further, Judge.
(PC-R. 179-181).
There is no credible evidence to support the State's contention that
there was a third photo lineup containing Mr. Mosley's photograph and that it
was shown to the three witnesses. This
third photo lineup is of course the basis for the circuit court's finding as to
how Ms. Lowe became confused and then "convinced" that Mr. Smith was
the wrong man and that Mr. Mosley was the man she actually saw. The trial court assumed that Ms. Lowe
recognized Mr. Mosley's picture in 1989 because she had been shown his picture
in 1985. The truth is Ms. Lowe was not
shown Mr. Mosley's picture in 1985 because there was no Mosley lineup. The truth is that Ms. Lowe "became
convinced" that Mr. Smith was the wrong man at trial when she saw him in
person.
C. The Pressure Ms. Lowe Felt
At the evidentiary hearing, the State attempted to rebut Ms. Lowe's
claims that she was pressured throughout the process to make a positive
identification of Mr. Smith. The State
presented the testimony of Detectives Scheff and Amabile and Mr. Smith's
prosecutor, Mr. Dimitroleas, who to varying degrees stated that there was no
pressure put on Ms. Lowe. A review of
the entire record of this case establishes that the very tactics complained of
by Ms. Lowe were in fact used upon the other identification witness, Mr. Davis.
The identification procedures used with Mr. Davis were just as
troubling as those described by Ms. Lowe at the evidentiary hearing. He gave an initial description of the man he
saw near the victim's home, and after assisting with the drawing of the
composites and discussing the composite with Ms. Lowe, he was also shown a
photo lineup. On the first occasion he
did not identify anyone (R. 754). He
did make an identification on the second occasion saying Mr. Smith "looks
like" the man he saw (R. 784). In
fact, he indicated the police were acting in a suggestive manner (R. 786).
Because of this questionable identification, Mr. Davis was shown a
live lineup. Before the lineup, the
detectives showed Mr. Davis a photograph of Mr. Smith (R. 789). During the lineup the officers asked him
"do any of these guys look like the one in the picture" (R. 790-91). At the lineup, Davis was
"bothered" because Mr. Smith did not seem as tall as the man Davis
had seen, but Davis was reassured when the police told him all the men in the
lineup were 6' or 6'1 tall (R. 757).
Davis repeatedly told the police that Mr. Smith only "looked
like" the man Davis had seen, but felt compelled by the police to make a
selection from the lineup (R. 793). Mr.
Davis picked out Mr. Smith because of this pressure. In fact, prior to the in-court identification the prosecutor was
seen pointing Mr. Smith out to Mr. Davis.
At Mr. Smith's trial, the State requested that the court call Mr.
Davis as a witness because they could not vouch for his credibility based on
his inconsistent statements citing Williams v. State, 443 So. 2d 1053
(Fla. 1st DCA 1984). What is readily
apparent from the record is that the State did not want to call Mr. Davis as
their witness because of what he would say about the tactics and pressure used
by Detectives Scheff and Amabile. Of
course, Detectives Scheff and Amabile at trial denied putting any pressure on
Mr. Davis to make an identification of Mr. Smith, just as they denied at the
hearing that they pressured Ms. Lowe.
The tactics used by Detectives Scheff and Amabile were clearly
established at Mr. Smith's trial. Ms.
Lowe's testimony now only confirms what Mr. Davis testified to at trial -- that
the identifications of Mr. Smith were the result of improper police pressure.
D. Ms. Lowe's Hearing Testimony Is A Basis For Relief
The circuit court's denial of Mr. Smith's Motion to Vacate Judgment
and Sentence is not supported by substantial competent evidence. Ms. Lowe's recantation at the evidentiary
hearing entitles Mr. Smith to a new trial.
This Court has already determined that Ms. Lowe was the sole material
witness at Mr. Smith's trial. At the
evidentiary hearing, Ms. Lowe provided sworn testimony consistent with the
affidavit she provided in December 1989.
She explained that at Mr. Smith's trial upon seeing Mr. Smith for the
first time she realized he was not the man that she saw on the night of the
murder. Ms. Lowe testified that she
felt pressured to identify Mr. Smith as the individual she had seen and became
confused about what to do. She
unequivocally testified that Mr. Smith was not the man she saw. Rather, the man she saw was Mr. Mosley, another
suspect in the case. Based upon the
evidence presented at the evidentiary hearing, by both Mr. Smith and the State,
the circuit court's denial of relief is not supported by the record. Moreover, the circuit court's findings go
beyond the proper role of the Court and preempt the function of the jury.
All of the circuit court's conclusions rely upon Ms. Lowe having
been shown a photo lineup containing Mr. Mosley's picture pretrial. The starting point for an analysis of the
circuit court's denial of relief is the court's finding that:
Ms. Lowe "recanted" her trial testimony four
years later, following an approach by a defense investigator at her home, when
the investigator showed her a single picture purporting to be Eddie Lee
Mosley. Having been shown a picture
of Mr. Mosley years before by the police investigators (and rejecting
Mosley as the individual she saw), [in December 1989] Ms. Lowe apparently
became confused, and became convinced that Mosley was the individual she
had seen at her home near the time of the homicide.
(PC-R. 285)(emphasis
added). The crux of the circuit court's
finding is that Ms. Lowe is mistaken in her present belief that Mr. Mosley is
the individual she saw on the night of the homicide. The court premised this conclusion upon the existence of the
mysterious Mosley photo lineup, reasoning that Ms. Lowe recognized Mosley's
photo in 1989 because Ms. Lowe had been shown Mosley's photo in 1985. The court found that when Ms. Lowe was shown
Mr. Mosley's photo by Mr. Walsh in December 1989, she became confused, thinking
he was the individual she saw on the night of the homicide because she was
merely remembering Mr. Mosley's photo from the photo lineup the police showed
her pre-trial. The court further
concluded that as a result of that "confusion", Ms. Lowe "became
convinced" that Mr. Mosley is the individual she saw on the night of the
murder. However, the court's premise --
that Ms. Lowe was shown Mosley's photo in 1985 -- is incorrect, as all of the
credible pretrial and trial evidence discussed above demonstrates.
The circuit court did not find that Ms. Lowe is now lying. To the contrary, the circuit court found
that Ms. Lowe is "convinced" that it was Mr. Mosley she saw and not
Mr. Smith. There was absolutely no
evidence presented which would support a finding that Ms. Lowe is now
lying. She has absolutely no reason to
recant her trial testimony. She does
not know Mr. Smith and has no motive to assist him. In fact, she does know the victim's family and if she were to be
affected by bias or motive, her testimony at trial and at the evidentiary
hearing make clear that it would be in favor of the victim's family, not Mr.
Smith. The State presented no evidence
to indicate any motive for Ms. Lowe to now falsely recant her trial
testimony. Instead, Ms. Lowe provided a
compelling and reasonable explanation for the difference in her testimony at
trial and at the evidentiary hearing: confusion from seeing Mr. Smith face to
face for the first time at his trial and then realizing he was not the man (PC-R.
79-80), not confusion from seeing Mr. Mosley's photo in 1985. There is absolutely no evidence that Ms.
Lowe's recantation was inherently unreliable and incredible because of a motive
to lie.
The circuit court rejected Ms. Lowe's recantation on its belief that
she is now confused because she had seen Mr. Mosley's photo pre-trial. Although Mr. Smith does not concede that
there ever was a photo lineup containing Mr. Mosley's photograph, even assuming
there was evidence to support the circuit court's theory as to how Ms. Lowe
"became confused, and became convinced Mr. Mosley was the individual"
she saw, the circuit court's role should end there. Ms. Lowe's present belief that Mr. Mosley is the man is
sufficient evidence to warrant a new trial.
Ms. Lowe's evidentiary hearing testimony "would probably have
resulted in an acquittal." Jones
v. State, 591 So. 2d 911, 916 (Fla. 1991).
Absent a finding that Ms. Lowe's recantation is inherently unreliable
and incredible, the ultimate question of whether she is confused now or at
trial is for a jury to decide, not the circuit court.
The circuit court exceeded its role and usurped the role of the jury
in determining that although Ms. Lowe is now convinced that Mr. Mosley is the
individual and not Mr. Smith and that she was wrong at trial, she is now merely
confused. It was not for the circuit
court to determine the guilt of Mr. Smith or the innocence of Mr. Mosley; it
was not for the court to weigh the new evidence as though it were a jury,
determining what is true and what is false.
The circuit court's duty was the very narrow one of ascertaining whether
there was new evidence fit for a new jury's judgment. See Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). More properly the issue was whether honest
minds, capable of dealing with evidence, would have probably reached a
different conclusion, because of the new evidence, from that of the first
jury? Id. Surely, a jury hearing Ms. Lowe's
evidentiary hearing testimony would have acquitted Mr. Smith. Whether a jury would ultimately acquit Mr.
Smith is for a jury to decide after hearing all the relevant testimony. The circuit court's role is not to usurp that
jury function. Whether an eye witness
is confused is an issue which must be submitted to a jury not one which a judge
may determine for the jury. Thus, even
accepting for the sake of argument that the circuit court's findings are
supported by the record, Mr. Smith has made a sufficient showing that his
conviction should be vacated and a new trial ordered so that a 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.
(PC-R. 286).[10]
The 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 pre-hearing
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 pre-hearing 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.
The 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." (PC-R. 285-6). However, all of the pre-hearing 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."
Jones v. State, 591 So. 2d 911, 916 (Fla. 1991).
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 September 11, 1992.
LARRY
HELM SPALDING
Capital
Collateral Representative
Florida
Bar No. 0125540
GAIL
E. ANDERSON
Assistant
CCR
Florida
Bar No. 0841544
JOHN
S. SOMMER
Staff
Attorney
Florida
Bar No. 862126
THOMAS H.
DUNN
Special
Assistant CCR
Florida Bar
No. 871753
OFFICE
OF THE CAPITAL COLLATERAL
REPRESENTATIVE
1533
South Monroe Street
Tallahassee,
FL 32301
(904)
487-4376
____________________________________
COUNSEL FOR
APPELLANT
Copies furnished to:
Robert Krauss
Assistant Attorney General
Department of Legal Affairs
2002 North Lois Avenue - 7th Floor
Tampa, FL 33607
[1]Mr. Smith's case involves the same State Attorney's Office
and the same judicial circuit as was involved in Rose.
[2]Canon 3A(4) of the Code of Judicial Conduct was the Canon
relied upon by this Court in Mr. Rose's case.
See Rose, 17 F.L.W. at 320.
[3]See
Argument II.
[4]See also Livingston;
Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978); Digeronimo v. Reasbeck,
528 So. 2d 556 (Fla. 4th DCA 1988); Ryon v. Reasbeck, 525 So. 2d 1025
(Fla. 4th DCA 1988); Fruhe v. Reasbeck, 525 So. 2d 471 (Fla. 4th DCA
1988); Lake v. Edwards, 501 So. 2d 759 (Fla. 5th DCA 1987); Davis v.
Nutaro, 510 So. 2d 304 (Fla. 4th DCA 1986); ATS Melbourne, Inc. v.
Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985); Gieseke v. Moriarty,
471 So. 2d 80 (Fla. 4th DCA 1985); Management Corp. v. Grossman, 396 So.
2d 1169 (Fla. 3rd DCA 1981).
[5]The United States Supreme Court has also recognized the
basic constitutional precept of a neutral, detached judiciary. Marshall v. Jerrico, Inc., 446 U.S.
238, 242 (1980). Due process guarantees
the right to a neutral detached judiciary.
Carey v. Piphus, 425 U.S. 247, 262 (1978); Taylor v. Hayes,
418 U.S. 488, 501 (1974).
In capital cases,
judicial scrutiny must be more stringent than it is in non-capital cases. As the United States Supreme Court indicated
in Beck v. Alabama, 447 U.S. 625 (1980), special procedural rules are
mandated in death penalty cases in order to insure the reliability of the
sentencing determination. "In capital cases the finality of the sentence
imposed warrants protections that may or may not be required in other
cases." Ake v. Oklahoma,
470 U.S. 68, 87 (1985)(Burger, C.J., concurring). Thus, in a capital case such as Mr. Smith's the Eighth Amendment
imposes additional safeguards over and above those required by the Fourteenth
Amendment.
[6]The
text of Ms. Lowe's affidavit is set forth fully in this Court's previous
opinion. Smith v. Dugger, 565
So. 2d at 1296.
[7]Prior
to the evidentiary hearing, Ms. Lowe was married. Her name is now Chiquita Ling.
To avoid any confusion, she will be referred to by her maiden name, Ms.
Lowe.
[8]At
trial, the significance of Ms. Lowe's description of the individual she saw on
the night of the murder as having no scar was brought out by trial
counsel. Counsel instructed Ms. Lowe to
step down and look closely at Mr. Smith's face. Ms. Lowe did so and acknowledged the scar on Mr. Smith's face and
affirmed that she never saw that noticeable scar on the face of the man she saw
on the night in question (R. 706-7).
[9]Detective Scheff testified in detail about the Freeman photo
lineup (Scheff deposition, p. 44) and the Smith photo lineup (Scheff
deposition, p. 69), but never mentioned a third photo lineup.
[10]Further, 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 Brady 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 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.
(continued...)(...continued) [xxx1]FSC-INIT.FLS; [CASES/FINAL]; LOVELY; FINAL;