IN THE SUPREME COURT OF FLORIDA

CASE NO.

FRANK LEE SMITH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

OF THE SEVENTEENTH JUDICIAL CIRCUIT,

IN AND FOR BROWARD COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

BRET B. STRAND

ASSISTANT CCRC

Office of the CCRC - South

1444 Biscayne Boulevard, Suite 202

Miami, Florida 33132

(305) 377-7580

COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court's denial of Mr. Smith's motion for post-conviction relief. The motion was brought pursuant to Florida Rule of Criminal Procedure 3.850. The following symbols will be used to designate references to the record in this appeal:

"R" -- record on appeal to this Court;

"PC-R" -- record on appeal to this Court following the 1998 evidentiary hearing;

"Def. Exh." -- defense exhibits;

"State Exh." -- State exhibits.

REQUEST FOR ORAL ARGUMENT

Mr. Smith has been sentenced to death. The resolution of hte issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issue through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Smith, through counsel, accordingly urges that this Court permit oral argument.

STATEMENT OF FONT

Mr. Smith's Initial Brief is written in Courier font size 12.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

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STATEMENT OF THE CASE

On May 9, 1985, Frank Lee Smith was indicted for first-degree murder, sexual battery, and burglary in the Seventeenth Judicial Circuit, Broward County, Florida. Mr. Smith was tried in January 1986 and convicted on all three counts (R. 1252). After a one-day penalty phase, the jury recommended a death sentence (R. 1364). On May 2, 1986, Circuit Judge Tyson sentenced Mr. Smith to death (R. 1440). This Court affirmed on direct appeal. Smith v. State, 515 So. 2d 182 (Fla. 1987). The United States Supreme Court denied certiorari. Smith v. State, 485 U.S. 971 (1988).

On October 18, 1989, a death warrant was signed in Mr. Smith's case. On November 17, 1989, Mr. Smith filed a Rule 3.850 motion in circuit court which was summarily denied. This Court remanded for an evidentiary hearing on Mr. Smith's newly discovered evidence of innocence claim based on Chiquita Lowe's recantation of her trial testimony identifying Mr. Smith as the man she saw near the victim's house on the night of the crime. In ordering a hearing on this claim, this Court noted the importance of Ms. Lowe's testimony at Mr. Smith's trial:

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 v. Dugger, 565 So. 2d 1293, 1296 (Fla. 1990). This Court also noted that the man whom Ms. Lowe identified as the man she saw near the victim's house on the night of the crime, Eddie Lee 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." Id.

On March 7, 1991, the circuit court held an evidentiary hearing at which Ms. Lowe testified that she identified the wrong man at trial and that Mr. Mosley is the man she saw near the victim's house on the night of the murder. The circuit court denied relief. One of Mr. Smith's arguments on appeal was that Judge Tyson had engaged in improper ex parte communication with the State when he contacted Assistant State Attorney Paul Zacks and requested that Mr. Zacks prepare the order denying relief. This Court relinquished jurisdiction to Circuit Judge Mark A. Speiser to conduct a hearing regarding the ex parte communication. Following the hearing, this Court found that improper ex parte communication had occurred and remanded the case again to Judge Speiser to conduct a second evidentiary hearing on Ms. Lowe's identification of Eddie Lee Mosley as the man she saw on the night of the murder. Smith v. State, 708 So. 2d 253 (Fla. 1998).

An evidentiary hearing was held on September 16, 17, 18, and October 2 and 21, 1998. In addition to Chiquita Lowe (now Olige), Mr. Smith presented the testimony of Andrew Washor, his trial attorney; Jeffrey Walsh, an investigator for Mr. Smith's post-conviction counsel; and William Dimitrouleas, the trial prosecutor and now a federal judge. The court excluded the testimony of Dr. Walter Hathaway, an optometrist whose testimony was proffered at the 1991 evidentiary hearing. The State presented Dorothy McGriff, the victim's mother, and Detective Richard Scheff, the lead investigator on this case.

Prior to the hearing, counsel for Mr. Smith requested DNA testing of the evidence taken from the victim, Shandra Whitehead. The State opposed counsel's motion for a confidential expert, and the court denied the request. Assistant State Attorney Carolyn McCann then independently moved the court to allow DNA testing by the Florida Department of Law Enforcement. As an alternative, the court suggested sending the evidence to the FBI. When the hearing resumed in October, counsel for Mr. Smith agreed to Ms. McCann's conditions and accepted the court's suggestion to allow the FBI to conduct the DNA testing. Ms. McCann then withdrew her motion and argued that counsel's request for DNA testing was procedurally barred. The circuit court agreed and the motion was denied.

On February 24, 1999, the circuit court denied all relief. Mr. Smith filed a Motion for Rehearing, requesting that Judge Speiser reconsider his denial of Mr. Smith's motion for DNA testing, which was denied on ***. This appeal followed.

STATEMENT OF THE FACTS

A. INTRODUCTION

Mr. Smith is innocent of the crime for which he was convicted and sentenced to death. He was convicted based on the testimony of three "eyewitnesses" -- none of whom actually saw the crime occur. The victim's mother, Dorothy McGriff, saw a man outside her house just before she found her daughter. Chiquita Lowe testified that a man flagged down her car near the victim's house on the night of the crime and asked her for money. Gerald Davis was walking on the victim's street on the night of the crime when a man approached him and offered him drugs. There was absolutely no physical evidence linking Mr. Smith to the crime or the crime scene -- no hair, no fingerprints, no blood, no fibers matching Mr. Smith were found. This Court noted in 1990 when it ordered a hearing on Mr. Smith's newly discovered evidence claim that of the three eyewitnesses, Chiquita Lowe "clearly was the most credible." Smith, 565 So. 2d at 1296. This Court also noted that Dorothy McGriff "could not identify [the man's] face. She later identified Smith based only on his shoulders." Id. at 1295. Of Gerald Davis, this Court observed that "[he] could not remember `how the guy looked.' He testified that Smith looked like the man but he could not identify him positively." Id. Ms. Lowe, the only positive witness who identified Mr. Smith, has since testified that Eddie Lee Mosley, not Frank Smith, is the man she saw on the street the night of Shandra Whitehead's murder. As this Court noted in 1990, Mr. Mosley was the suspect in numerous rapes, murders, and rape/murders in the same neighborhood in which this crime occurred.

Detectives Richard Scheff and Philip Amabile testified at trial that they showed the three witnesses photo line-ups of two suspects: James Freeman and Frank Lee Smith. Detective Scheff provided the names of other suspects, including Eddie Lee Mosley, who had been eliminated; he testified that none of these other suspects, with the exception of James Freeman, was ever put in a photo line-up. Suddenly in 1998 his testimony changed. Detective Scheff testified that he showed the witnesses photo line-ups of three suspects: James Freeman; Frank Lee Smith; and Eddie Lee Mosley. Detective Scheff produced the line-up containing Eddie Lee Mosley's picture at the hearing. Detective Scheff's testimony that there were three photo line-ups is contradicted by all the other evidence in this case: Scheff's trial testimony; Scheff's deposition testimony; Detective Amabile's deposition and trial testimony; Scheff's handwritten notes and final police report; the testimony of the witnesses; the hearing testimony of Andrew Washor and Judge Dimitrouleas; the public records received by Mr. Smith's trial counsel; and the public records received by Mr. Smith's post-conviction counsel. The Mosley line-up had not been seen by anyone involved in this case before Detective Scheff brought it to the 1998 hearing. Detective Scheff testified in 1998 that he made a mistake at Mr. Smith's trial when he testified that there were two photo line-ups shown to the witnesses. He could not explain why all the other evidence in the case contradicted his hearing testimony.

Mr. Smith has also sought to have the physical evidence, two or three intact spermatozoa that were taken from the victim in this case, tested for DNA. At the time of trial, DNA testing was not in use in Florida, and the evidence was tested only for blood typing, which did not match Mr. Smith.^[1] Mr. Smith's request for DNA testing, which could definitively prove his innocence of this crime, has been denied by the circuit court based on the State's argument that the request is procedurally barred. The circuit court accepted the State's argument despite the fact that the State independently moved the court to allow DNA testing by the Florida Department of Law Enforcement. When Mr. Smith's counsel accepted the court's alternative suggestion that the evidence be sent to the FBI, the State withdrew its motion and claimed that Mr. Smith's request for DNA testing was procedurally barred. Mr. Smith has been denied the opportunity to definitively prove his innocence through uncontroverted scientific evidence. In light of Chiquita Lowe's identification of Eddie Lee Mosley and the unreliability of the other evidence used to convict Mr. Smith, the State's opposition to DNA testing and the court's denial of Mr. Smith's request has resulted in a miscarriage of justice.

B. THE TRIAL RECORD

Mr. Smith was convicted and sentenced to death for the April 14, 1985, rape and murder of eight-year-old Shandra Whitehead in Ft. Lauderdale, Florida. The crime occurred between 10:30 or 10:40 p.m., when Shandra's aunt checked on her and her brother Reginald (R. 608), and 11:30 p.m., when Shandra's mother arrived home from work and found her daughter (R. 635). Ms. McGriff testified that as she pulled her car into the driveway that night, she saw a man at the side of the house reaching in through a window (R. 635-37). Ms. McGriff yelled at the man and then jumped out of the car, grabbed a slingblade, and chased the man away from the house (R. 638). The man ran from Ms. McGriff and jumped over a chain-link fence into the backyard (R. 639). Ms McGriff then went into the house where she found her daughter (R. 641).

In addition to Ms. McGriff, the police found two witnesses whom they believed saw the man who raped and killed Shandra Whitehead -- Gerald Davis and Chiquita Lowe, two teenagers who lived in the victim's neighborhood. Mr. Davis testified that on the night of the murder he was out walking at about 9:30 or 10:00 p.m. when a man called to him from the empty field across the street from Shandra's house (R. 745-46). As Mr. Davis continued walking, Chiquita Lowe drove up to him and stopped to talk (R. 747). After Ms. Lowe drove away, the man ran to Mr. Davis; he told him that he had just moved from New York, offered him drugs, and made a sexual proposition (R. 748). Mr. Davis testified that he "paid him no mind because [he] didn't want to be bothered." (R. 749). Chiquita Lowe testified that at about 10:30 p.m. she was driving down Shandra's street when a man came out of Shandra's yard and flagged her down; the man approached the car, leaned into the driver's side window, and asked for money (R. 668-69). The man left when Ms. Lowe told him that she had no money (R. 669). Ms. Lowe continued driving and stopped about a minute later to talk to Mr. Davis (R. 673).

On April 17th, Mr. Davis and Ms. Lowe assisted the police in the creation of a composite sketch of the suspect (R. 675, 752). Detective Amabile testified that Ms. McGriff did not participate in drawing the composite sketch because Ms. Lowe and Mr. Davis "had more of an eye for detail" and because Ms. McGriff was "emotionally distraught" and was "a simple woman and could not articulate what she was trying to tell us" (R. 886-87). Detective Scheff testified that Ms. McGriff did not participate in creating the composite because he was "fairly certain" that she had seen the same man as Lowe and Davis; he also agreed that Lowe and Davis "were much more articulate than she was." He explained that "[t]he ability to do a composite depends upon the witness' ability to visualize the person." (R. 969). Before the composite sketch was distributed in the neighborhood, it was shown to Ms. McGriff who, according to Detective Scheff, "gave . . . a very positive reaction." (R. 971).

Mr. Smith was arrested outside his home on April 18, 1985 (R. 855). Detective Scheff had received a call from Ms. Lowe regarding a man who had come to her house with a shopping cart trying to sell a television (R. 971). Detective Scheff testified at trial and in his deposition that Ms. Lowe spoke to the man with the television and immediately recognized him as the man she saw near the crime scene (R. 1031-33). Detective Scheff explained that Ms. Lowe believed that the man had used the television as a ruse to get to her because he somehow knew she was a witness in this case (R. 1033). However, Ms. Lowe testified that when the man came to her house with the television, she was asleep (R. 676). Her family members spoke to the man with the television, saw the composite sketch, and became convinced that he was the same man (R. 677-78). Ms. Lowe looked out a window and saw the man walking away through an alley across the street from her house (R. 677).^[2] Mr. Smith was arrested several hours later. He was never seen by the police with either a shopping cart or a television (R. 856).

The defense strategy at trial was to challenge the three witnesses' identifications of Mr. Smith and to suggest that the police had not properly eliminated other suspects. As this Court has noted, the testimony of Ms. McGriff and Mr. Davis identifying Mr. Smith was extremely weak: Ms. McGriff, though positive about her identification, admitted that she did not see the man's face, and Mr. Davis, who reluctantly identified Mr. Smith, repeatedly told the police he did not remember what the man looked like. Assistant State Attorney William Dimitrouleas' closing statement demonstrates that the State had only one strong witness who could identify Mr. Smith. Mr. Dimitrouleas told the jury:

I don't care how much Gerald Davis' testimony was attacked, how much his identification is attacked, there has never been any question as to the fact that there was a weird strange guy that was talking to Gerald Davis that evening and what he said was bizarre.

(R. 1156). Mr. Dimitrouleas then bolstered Mr. Davis' identification and encouraged the jury to overlook his inconsistent statements and hesitation by reassuring the jury that he and Ms. Lowe saw the same person (R. 1158). Mr. Dimitrouleas also reassured the jury that Ms. McGriff's identification of Mr. Smith based only on his shoulders is reliable because Mr. Smith has a "distinctive" upper body (R. 1160).

On April 15, 1985, Ms. McGriff gave the following description of the man to the police: "medium build, heavy in the chest, lower haircut, black man, dark skin with jeans, pair of brown suede shoes, orange T-Shirt with writing across the chest." (R. 650). Ms. McGriff testified that when she gave her first statement to the police she did not know what the man looked like (R. 651) and that she told the police she would not be able to recognize the man's face (R. 658, 663).^[3] At her deposition, Ms. McGriff testified that she could not describe the man's face (R. 655). Ms. McGriff testified that she only saw the man for a couple seconds (R. 651-52). She explained:

Q Isn't it true you weren't actually paying too much attention to the man itself? You were basically interested in getting him away from your window?

A That is true.

Q Isn't it true when the person turned his face around it was flashing so quickly you didn't get a good look to see whether he was wearing glasses or not?

A That's right.

(R. 653-54).

Ms. McGriff explained how she identified Mr. Smith from the photographic line-up:

Q (By Mr. Washor) You didn't get a good look at his face, isn't that correct?

A No.

Q Isn't it fair to say there was nothing about this person's face that stuck out in your mind at all because everything happened in a flash?

A Pardon me?

Q Nothing about this person stuck out in your mind because everything happened in a flash?

A Yes.

Q Isn't it also fair to say everything was dark from this person's head down to his shoulders?

A Yes.

Q But from his shoulders down, you can describe his clothing because the light was shining on the clothing; isn't that correct?

A Yes.

Q Wouldn't it be fair to say you picked that picture of Mr. Smith based upon his shoulders?

A Yes.

Q You couldn't identify his face, right?

A No.

Q If I showed you a picture of his face, you couldn't tell me whether that was the man or not; correct?

A Yes, from his shoulders.

Q Yes, I'm correct. If I show you a picture of the face of the man you couldn't tell me?

A No.

Q You could not, correct?

A No.

Q Isn't it true that you couldn't see the person's face at all, describe it, because it was just a flash that you saw?

A Yes.

(R. 655-56). Although Ms. McGriff testified that she identified Mr. Smith from his shoulders, his shoulders are not visible in the photo line-up which includes only Mr. Smith's face and neck (State Exhibit *, R. ). As Detective Scheff defensively told Mr. Smith's attorney during his deposition when asked whether Ms. McGriff identified Mr. Smith from his face: "there is nothing else in the picture that would identify other than his face." (PC-R. depo at 74).

Mr. Davis gave the following description to the police: "maybe six feet, a hundred and sixty, hundred seventy pounds, like muscular, chubby stomach, really couldn't tell, it was dark and he had a beard that was very tacky, like he did not keep it up and kinky hair." (R. 766). Mr. Davis testified that he was trying to avoid the man: "I didn't really want to be bothered with him because I did not know the guy. . . . I was like paid him no mind because I didn't want to be bothered." (R. 748-49; see also 750, 768, 770). Mr. Davis explained that he did not get a good look at the man because the streetlights were out (R. 773), he was ignoring the man and hoping he would go away (R. 777), he only looked at him for a few seconds (R. 778), and he "was never looking at him directly." (R. 776). Mr. Davis tried to explain his numerous inconsistent descriptions:

What I'm saying, I said it was dark. I was trying to avoid the guy. I don't remember exactly.

(R. 777)(emphasis added). Mr. Davis told the police that nothing about the man stuck out in his mind and that he was unsure whether he would be able to recognize the man (R. 772, 778).

Mr. Davis could not identify Mr. Smith from the photo line-up that was shown to all three witnesses and insisted on seeing a live line-up before he would make an identification (R. 1051). Mr. Davis was uncomfortable with his identification of Mr. Smith from the live line-up because, as he told Detective Scheff, Mr. Smith did not look as large as the man he saw on the night of the crime; Mr. Davis explained that when he voiced his concern about Mr. Smith's size, the police "said to me that the reason it's like that because all the guys are between six one and six feet and that is why they all seem the same size." (R. 757). After being reassured by the police, Mr. Davis identified Mr. Smith.

Detective Scheff lied to Mr. Davis: the men in the live line-up were not all between six feet and six one. Detective Scheff tried to claim that the men were "[a]bout six feet tall, as close as we could get. I think one was six feet tall, all appeared to be the same." (R. 1048). However, on cross-examination, he was forced to admit that one man was five feet ten inches tall and another was only five feet nine inches tall (R. 1050). Mr. Smith stood between the two shortest men in the line-up (R. 1050). Detective Scheff refused to accept responsibility for the varied heights of the men in the line-up:

I want to say this to you, Mr. Washor, we did not measure these people. I'm basing the physical description on what they are telling me. If they are correct, if they know their height, then that is the correct height. If they are in error, then these figures are going to be in error.

(R. 1049). Detective Scheff claimed that he "tried to get as many people that physically resembled [Mr. Smith] as possible," but he was forced to admit that two men were obviously shorter than the others (R. 1049). Detective Scheff also admitted that none of the men in the line-up weighed more than one hundred and eighty pounds although the descriptions of the suspect in this case all indicated a weight heavier than that (R. 1050). Detective Scheff also agreed that three of the men in the line-up were substantially younger than Mr. Smith: by fourteen, seventeen, and thirteen years (R. 1050). Detective Amabile confirmed that Mr. Smith was the oldest and the tallest man in the line-up and that he was situated between the two shortest men (R. 942).

Mr. Davis also testified that the police pressured him to make an identification and used suggestive tactics. During Mr. Davis' first statement to the police, he said in response to their questions that the man did not have any scars on his face (R. 769).^[4] However, during his second statement, Mr. Davis said that the man had a scar on his cheek (R. 788). Mr. Davis explained why his description regarding this detail changed:

Q What, if any, recollection do you have regarding whether the fellow had any scars?

A I don't remember.

Q Do you recall having a conversation with the police or in a deposition later on about scars?

A Yes.

Q Do you recall what that conversation was?

A It was, did he have a scar. I said, I think so.

Q Would that have been based on something that you were remembering or something that the police had told you or do you know?

A Something that they were telling me.

Q You don't have any recollection of the scar?

A No, I don't remember a scar.

(R. 757-58). Between Mr. Davis' first and second statements, Mr. Smith was arrested. The police, noticing that Mr. Smith has a scar on one cheek, realized that they needed to alter Mr. Davis' description. As Mr. Davis explained, his revised description of the scar on the man's cheek was based "[o]n something that [the police] were telling me." (R. 758). Mr. Davis was clearly confused at the trial when he tried to explain his inconsistent statements regarding the scar: "I probably said scar at one time but I probably said he didn't have any scars. He didn't have any scars." (R. 769).

Detectives Scheff and Amabile were also forced to explain Mr. Davis' inconsistent statements regarding whether the man he saw on the night of the crime had a scar. Detective Amabile initially confirmed Mr. Davis' memory of his first statement to the police when he said that the man had no facial scars (R. 925).^[5] During redirect examination, Detective Amabile changed his testimony:

Q Did you all come out point blank and say, did the guy have any scars?

A No.

Q What exactly was Gerald Davis asked?

A He was asked if he had any scars, marks, tattoos, missing gold teeth. It was all one sentence that was asked.

Q What was his response to the whole line of things?

A No.

Q Now when he said no, did you catch that he was saying no to scars?

A No.

Q Had he previously told you about a scar?

A Prior to taking a taped statement is when he told us about the scar.

(R. 953).

On cross-examination, Detective Scheff clearly became defensive when Mr. Smith's attorney asked about Mr. Davis' description of the suspect regarding the scar:

Q I believe on your direct examination when you said when speaking to Davis during this first statement, that he stated that the man had a scar on his face?

A That's correct.

Q Are you positive about that?

A Absolutely.

Q Would you like to refresh your memory at all?

A No, sir.

Q Do you remember Mr. Davis saying anything contrary during your conversation with him, your taped conversation with him?

A Well, I know I believe I know what you are referring to.

Q What am I referring to?

A You're referring to the question in which he responds with a, no, to the question in reference to scars and he responds with a negative and says, no, but I believe that was my fault and not his.

Q Did he or did he not say that?

A If you want to refer to the question, I'll show you what I'm talking about. I know what you are talking about.

Q The first statement, page five, was there anything about him you remember, anything like missing teeth, anything that stands out in your mind, scars he might have had. And his answer, no.

A That's correct.

Q He did say no?

A Yes, but actually if you take a look at that question I have really asked him four questions and unfortunately if you are asking me why this happened, I can only --

Q I'm asking you what he said?

A He said no on the tape.

Q But it's your testimony that when he was off the tape he said, yes?

A That's correct.

(R. 1013-14). Mr. Davis said on tape that the man had no facial scars. Because this description is inconsistent with Mr. Smith's appearance, Detective Scheff claimed that off the tape Mr. Davis said the man did have a facial scar. Although Detective Scheff admitted that a facial scar would be "an important factor" to use in identifying a suspect, he did not think that Mr. Davis' untaped description of the scar was important enough to be included in his handwritten notes (R. 1014-15).

Mr. Davis testified at his deposition that the police were also giving him hints and speaking in a suggestive manner when they showed him the photo line-up (R. 786).^[6] When he viewed the live line-up, the police instructed him to pick out the person who "looks like" the man he saw near the crime scene; they did not tell him to pick only the man he actually saw (R. 789). In addition, Mr. Davis was shown a picture of Mr. Smith immediately before he viewed the live line-up (R. 789, 797-98). At his deposition, Mr. Davis testified that the police instructed him to pick out the man who looked most like the man in the picture he had just been shown (R. 790).

Mr. Davis admitted that he was unsure of his identification but that he felt compelled by the police to make an identification:

Q Isn't it true you can't honestly swear to me right now that the man you picked out in the live line-up is the same man you saw that night?

A No, I can't say he is exactly the same guy but he looks like the guy.

Q My question is: You can't honestly say that is the same man, can you?

A No.

Q But the police had you fill out a form, correct, to indicate that you picked out number five or whoever?

A Yes.

Q And didn't you keep on saying you weren't sure, only that he looks like the guy?

A Yes.

Q Isn't it true that if the guy came up to you right now you couldn't say whether it was the guy you saw on the street or not?

A No.

Q Why did you identify Mr. Smith?

A I identified him as the guy I picked out of the line-up and the guy I talked to but - which I have been saying from the beginning, I don't remember how the guy looked.

Q Didn't you feel compelled by the police in the live line-up to pick somebody out?

A Yes.

Q Isn't it true that the man you picked out in the live line-up, Frank Smith, was not as big as the guy you saw on the street?

A No.

Q That's true, isn't it?

A Yes.

Q Didn't you keep saying to the police, I don't know if this is the guy and didn't they keep saying to you, don't feel that you are going to send an innocent man to jail in an effort to get you to stick to your story?

A Yes.

Q Wasn't it apparent to you that the police wanted you to make an identification?

A Yes.

(R. 792-94)(emphasis added). Mr. Davis also testified that the police did not record his statements when he told them he was unsure of his identification; the only statement that was taped was his reluctant agreement with the detectives that Mr. Smith was the man he saw near the crime scene (R. 795).

Detective Scheff admitted that after choosing Mr. Smith from the line-up Mr. Davis "began to say that he wasn't sure that the person he had picked was the same person he had seen that night." (R. 991). Detective Scheff offered his own opinion about Mr. Davis' equivocation:

Well, it became clear that it was not the identification he was having a problem with but it was his testimony. The fact that he was going to have to appear in court, that he was reluctant to.

(R. 992). Despite Detective Scheff's opinion that Mr. Davis was a reluctant witness, his inconsistent statements and hesitation about the identification of Mr. Smith were caused by his doubts that Mr. Smith was the man he saw on the night of the murder.

Mr. Davis made so many inconsistent statements regarding the man's appearance and stated so many times that he did not remember what the man looked like that the State would not vouch for his credibility by calling him as their witness. Assistant State Attorney Dimitrouleas requested that Mr. Davis be called as a court witness:

Based on his changing his testimony from the sworn statement to the police to what he said on deposition. I can't vouch for his credibility. He's saying basically now, before he made the live line-up identification that the police showed him a photo line-up, again, which they emphatically deny. Contrary to what he said in the sworn statements he's positive he's now saying, all he can say is the guy looks like the guy.

(R. 742). Over defense objection, the court granted the State's request thereby allowing the State to impeach one of the witnesses who allegedly could identify Mr. Smith as the man seen near the victim's house on the night of the murder.^[7]

Chiquita Lowe was the State's strongest identification witness at Mr. Smith's trial. She identified Mr. Smith as the man she saw on the victim's street on the night of the crime (R. 707). However, several aspects of Ms. Lowe's testimony reveal that, like Gerald Davis, she was manipulated by the police. Most telling, Ms. Lowe testified that the man she saw had a droopy eye "like it was weak. It needed glasses." (R. 683). Ms. Lowe and Mr. Davis testified that the man they saw was not wearing glasses (R. 696, 764).^[8] Ms. Lowe told the police about the droopy eye, and the composite sketch clearly indicates that both she and Mr. Davis observed this distinctive characteristic. This description presented two problems for the police after Mr. Smith's arrest: first, Mr. Smith does not have a droopy eye, and second, Mr. Smith is legally blind and cannot function without very thick glasses (PC-R. Hathaway testimony proffered from 1991). Ms. Lowe was coached by the police to offer her inexpert opinion about the man needing glasses in an attempt to reconcile her identification of Mr. Smith with her testimony about the man's droopy eye and lack of glasses.

Ms. Lowe's testimony was also inconsistent regarding the clothing worn by the man she saw on the night of the crime. The police found a blue windbreaker in a truck across the street from the victim's house (R. 962). Apparently, the police wanted to link the windbreaker to the crime although it was of no evidentiary value. Ms. Lowe testified that the man she saw on the night of the crime was wearing a blue windbreaker (R. 682). However, in her initial statement to the police, Ms. Lowe said she was unsure what the man was wearing, but thought she may have seen a white shirt or a white shirt with red stripes (R. 690). Ms. Lowe never mentioned a blue windbreaker to the police (R. 698).^[9]

Ms. Lowe's trial testimony also omitted an important detail from her initial description of the man she saw. She told the police that the man had big arms and a big chest (R. 688).^[10] Ms. Lowe initially denied this statement because when she viewed Mr. Smith in court she realized that he did not match the description.^[11] Finally, Ms. Lowe, like Gerald Davis, told the police that the man she saw did not have any scars on his face (R. 706-07). Ms. Lowe admitted at Mr. Smith's trial that he has a scar on one cheek (R. 707).

In addition to challenging the three witnesses' identifications of Mr. Smith, defense counsel also suggested that the police had not sufficiently eliminated other suspects. Detective Scheff testified that he investigated two other men as suspects: Arcy Nealy Williams was eliminated because he had an alibi (R. 963-64), and James Freeman was eliminated because the witnesses did not choose him from a line-up (R. 965-66). Detective Scheff also testified that Edwin McGriff, Eddie Lee Mosley, "Gator Mouth," and "Big John" were suspects (R. 1022, 1024-25).

Detective Scheff testified that other than Freeman, no other suspects were ever shown to the witnesses in either a live or a photo line-up (R. 946, 1026). Detective Amabile's testimony is consistent that he showed the three witnesses two photo line-ups: one including James Freeman and the other including Frank Lee Smith (R. 881-82, 907). The two photo line-ups were offered into evidence by the State (State Exhibit 105, line-up of James Freeman at R. 880; State Exhibit 81, line-up of Frank Lee Smith at R. ). Detective Amabile testified that he and Scheff followed up on the names of all suspects who came to their attention and that they eliminated all other suspects to their satisfaction (R. 948-49). Detective Scheff explained that once a name is brought to his attention as a possible suspect, "I have an obligation to follow up certainly and eliminate them as potential suspects." (R. 1055). In regard to this investigation, he testified that he had eliminated all possible suspects (R. 1056).

Detective Scheff was specifically asked about Eddie Lee Mosley and about the victim's relatives:

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.

(R. 1024). Detective Scheff attempted to downplay the significance of being a suspect in this case by explaining that "[a]t one point or another almost everybody in Fort Lauderdale was a suspect." (R. 1023).

During his deposition, Detective Scheff did not mention Eddie Lee Mosley at all despite Mr. Smith's attorney's exhaustive questioning regarding the four day investigation of this case. Detective Scheff detailed his activities for each day and each time was asked whether anything else was done:

Q Did that finish it for the 16th?

A Yeah, sure did.

(PC-R. depo at 41).

Q Anything else happen on the 17th of any consequence?

A No.

(PC-R. depo at 48).

Q Was anything else done on the 18th that we haven't discussed?

A No.

(PC-R. depo at 69).

Q After the 4 a.m., April 19th meeting with the Irvings, Bertha and family, where did your investigation take you?

A Then, it took me home to bed.

(PC-R. depo at 81). Detective Scheff repeatedly told Mr. Smith's attorney that nothing else had been done that was not discussed. He provided information about other suspects, including a tip regarding a possible suspect named "Gator Mouth" that was received after Mr. Smith's arrest (PC-R. depo at 93-95), and discussed potential evidence that was determined to be unreliable and was not used in the case against Mr. Smith (PC-R. depo at 91-92). The deposition concluded with the following question and answer:

Q Is there anything else that's happened in this case that we haven't discussed?

A I don't think so. Not that I can think of.

(PC-R. depo at 97).

When specifically asked about relatives of the victim, Detective Scheff did not tell Mr. Smith's attorney that Eddie Lee Mosley, the victim's uncle, was investigated as a suspect:

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 [the victim's mother]. 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 she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

(PC-R. depo at 44). Detective Amabile also testified that Edwin McGriff was the only member of the victim's family who was investigated as a suspect (R. 946). However, in contrast to Detective Scheff's deposition testimony regarding his conversation with Ms. McGriff about Edwin McGriff, Dorothy McGriff testified that she did not know that her cousin Edwin McGriff was a suspect (R. 658).

Detective Scheff said nothing about Eddie Lee Mosley, another cousin of the victim's mother, being a suspect. He said nothing about checking Mosley's criminal history for similar crimes. He said nothing about eliminating Mosley through a comparison of his modus operandi and that of this crime. Detective Scheff said nothing about showing the three witnesses a line-up including a photo of Eddie Lee Mosley.

C. THE EVIDENTIARY HEARING

On September 14, 1998, prior to the evidentiary hearing, counsel for Mr. Smith filed a motion for DNA testing requesting that the evidence in this case be released to a confidential expert for testing using the polymer chain reaction (PCR) method (PC-R. *). On September 16th, Assistant State Attorney Carolyn McCann responded that the request was procedurally barred but that the State would agree to DNA testing if Mr. Smith's counsel agreed to several conditions:

Now, in this case the defense wants to do DNA testing. They want the evidence released to the defense. They want to pick the lab that it's going to go to and the State has a valid objection on procedural grounds pursuant to Ziegler that this should not be done, that the Florida Supreme Court says this is an issue that's procedurally barred.

However, we would not object to them having the evidence DNA tested if there were several conditions that were met and that is: That the evidence would be released, it would go to FDLE and not just any lab, and that when the evidence comes back, that this Court would defer ruling on this 3.850 until the DNA comes back because --

THE COURT: On this 3.850.

MS. MCCANN: -- yes, because this is relevant evidence.

(PC-R. trans 17-18). Ms. McCann informed the court that she had already spoken to a supervisor at the FDLE laboratory and that the spermatozoa would not be suitable for DNA testing but that the vaginal swabs could be tested; Ms. McCann also requested that the victim's pajamas and two t-shirts seized from Mr. Smith's house be submitted for DNA testing (PC-R. trans 18-19). Ms. McCann then requested that the court order Mr. Smith to provide an oral swab which she had been told by FDLE was necessary for PCR testing (PC-R. trans 20).

Counsel for Mr. Smith reiterated that he was requesting DNA testing by a confidential defense expert (PC-R. trans 22-23). Ms. McCann told the court that the defense request was "ridiculous" and repeated her request that the testing be done by FDLE:

It has to be resolved one way or another. It has to go into federal court at some point. It's going to go in on a habeas and let's resolve it now.

If the defense wants DNA testing, let's do it now. Let's do it right. Let's send it to FDLE. If it comes back Mr. Smith, I want to know it. And if it doesn't come back him, I want to know that too.

(PC-R. trans 26-7). The court made the following ruling:

So my ruling is this: First of all, I do feel that the matter of the subject sperm should be tested. I feel that the results of the testing should be made available to both sides; however, the results should not be made available to the Court until after this Court has ruled with respect to the newly discovered evidence with respect to the testimony of Miss -- What's her name?

MR. STRAND: Lowe.

THE COURT: -- Miss Lowe. And as far as whether it be FDLE or the FBI or -- I do have trouble with having - I am concerned about having this evidence released to you for examination by some other private person.

Now, if you're asking that it be done by the FBI as opposed to FDLE - and I don't know how long the FBI would take, that's of no concern to the Court. I mean, if you would feel better having the FBI versus FDLE do it, I have no problem with that. But to release it to be tested by somebody else, I do have a problem with that.

(PC-R. trans 31-2). The court specifically denied Mr. Smith's motion for a confidential expert but repeated that it would grant a motion for testing by FDLE or the FBI:

I'm offering as an alternative to have it evaluated by either the FDLE or FBI lab with the results being made available to both sides. If you're asking for that as an alternative, I will be more than happy to grant that. But on your motion as it stands alone, I will deny it.

(PC-R. trans 34).

After the court denied Mr. Smith's motion, Ms. McCann requested DNA testing by FDLE or the FBI (PC-R. trans 34). The court deferred ruling on Ms. McCann's motion and requested that she provide caselaw in support of her argument (PC-R. trans 36-7).

When the hearing resumed on October 21st, while Ms. McCann's motion was still pending, counsel for Mr. Smith filed another motion for DNA testing agreeing to the court's suggestion that the evidence be sent to the FBI and agreeing that the results would be shared with the State (PC-R. *). Ms. McCann objected because counsel for Mr. Smith maintained in the motion that the results, if favorable to the State, could not be used in the current proceeding (PC-R. trans 556-57). Counsel for Mr. Smith explained that he would not stipulate to the State's right to introduce the results of DNA testing and that the admissibility of the evidence by either side would be litigated after the results were obtained. Counsel explained:

If the results come back saying that Mr. Smith didn't do it, we're done. If the results come back saying that Mr. Smith did do it, Miss McCann would have the option at that point of attempting to introduce that evidence to this Court and I would object.

The Court could rule at that time to admit the evidence. If it's an incorrect ruling, I would take it on appeal. So what I'm saying is she's putting the horse before -- she's putting the cart before the horse here.

(PC-R. trans 557).

At that point, Ms. McCann told the court that "the defense is playing games." (PC-R. trans 560). Ms. McCann then relied on this Court's decision in Ziegler v. State to argue that the request for DNA testing is procedurally barred (PC-R. trans 560). Counsel for Mr. Smith argued that the request was not procedurally barred because PCR testing, which was requested by Mr. Smith, was not ruled admissible by this Court until 1998 and that, as an indigent capital defendant, Mr. Smith cannot pay for scientific tests if the results would not be admissible in his defense (PC-R. 562-63). Counsel also distinguished Ziegler on the grounds that Mr. Smith's case was entirely circumstantial and that this Court had recognized that Ms. Lowe, who recanted her trial testimony, was the most credible State witness at trial (PC-R. trans 564-65). Finally, Mr. Smith's counsel agreed to all of Ms. McCann's demands and waived his objection to Ms. McCann admitting the results if favorable to the State:

Well, finally, Judge, they are going to address this, then fine, we'll waive the objection to her admitting it so that you can consider it. We'll waive that. She can have anything she wants. She can have it sent to her. She can have the Court disregard all the evidence heard in this hearing and consider only the DNA evidence, weigh that aspect of it.

So we're assenting to the same motion that she made earlier.

(PC-R. trans 573).

Ms. McCann stood on her procedural bar objection (PC-R. trans 572). The court clarified: "So you're receding from your earlier position?" (PC-R. trans 573-74). Ms. McCann then explained to the court that she only requested testing by FDLE because she knew that Mr. Smith's counsel would object:

Your Honor, when the defense moved for DNA testing, it was that they wanted a confidential examination. They didn't want us to know the results. The reason that I asked for it was because the defense wouldn't do it. They didn't have the confidence in their case.

(PC-R. trans 574). Ms. McCann did not explain why on September 16th she was eager to know the results of DNA testing ("It has to be resolved one way or another . . . . If it comes back Mr. Smith, I want to know it. And if it doesn't come back him, I want to know that too." (PC-R. trans 26-27)), but on October 21st she was relying on the procedural bar argument. The court did not explain why it believed on September 16th that the evidence should be tested ("I do feel that the matter of the subject sperm should be tested." (PC-R. trans 31)), but on October 21st was willing to accept Ms. McCann's procedural bar argument.

Ms. McCann retreated from her earlier representation to the court that she wanted to know the results of DNA testing. The court accepted the State's procedural bar argument and retreated from its earlier position, which was then shared by the State, that the evidence should be tested (PC-R. 574). Mr. Smith's second motion for DNA testing, agreeing to all of the conditions established by Ms. McCann on September 16th, was denied.

Counsel for Mr. Smith filed a Motion for Rehearing on DATE requesting that the court reconsider its ruling on the motion for DNA testing. Counsel also raised the following arguments to support Mr. Smith's position that the motion is not procedurally barred:

The State's response failed to address any of Mr. Smith's arguments and simply repeated the procedural bar argument. The Motion for Rehearing ****

Counsel for Mr. Smith also presented the following witnesses: Chiquita Lowe Olige; Jeffrey Walsh; Andrew Washor; and Judge William Dimitrouleas. Ms. Olige testified that in 1989 she was shown a picture of a man whom she recognized as the man she saw on the street the night of Shandra Whitehead's murder (PC-R. trans 79-82). Ms. Olige identified the picture she was shown in 1989; it is a booking photo of Eddie Lee Mosley (Defense Exhibit 1, PC-R. *).

Ms. Olige explained why she identified Mr. Smith at his trial as the man she saw near the victim's house on the night of the crime. Ms. Olige was a teenager at the time of Mr. Smith's trial who knew the victim's family and wanted to assist the police in solving the crime. She explained:

I was under a lot of pressure, a whole lot of pressure. I was scared, nervous, young. I just was under a lot of pressure. It hurted me because I know a little girl got killed, I know the family, and it just hurted me seriously, just hurted me. It hurts talking about it.

(PC-R. trans 66). Ms. Olige explained: "I knew a bad thing happened and I feel that I had to do something about it in my heart." (PC-R. trans 145). Ms. Olige also explained that she felt pressured by the community:

Q You said the people in the neighborhood --

A Neighborhood. They just afraid to have that person on the street again so they can go over again, something else can happen to somebody else little girl. They wanted him off the street.

(PC-R. trans 72-73).

In addition to pressure from the community, Ms. Olige testified that she was pressured by Detectives Scheff and Amabile to cooperate with their investigation. Ms. Olige testified that the police attempted to influence her when she looked at the first photo line-up. Ms. Olige testified that the police "kept pointing at [James Freeman's photo] and talking about it" and "kept on telling me is Freeman the one who did it, because Freeman known of doing that to little girls." (PC-R. trans 57). The police used the same suggestive tactics when they showed her the line-up including Mr. Smith's picture:

They showed me the second [line-up] and I looked at them and they say -- I'm not certain which number he said but I know it was a number with Frank Lee face on it. I'm just saying, for instance, say number two.

They said this is the one that Shandra mother said and Gerald said this is the one, Frank Lee. This is who did it. This is the one that we have to get off the street because he hurt little girls.

And he just kept on pointing to the picture and telling me that this is the one, we have to get him off the street.

THE COURT: Who's saying that?

THE WITNESS: The two police officers.

THE COURT: Scheff and somebody else?

THE WITNESS: Yes.

THE COURT: Did you know him beforehand, Frank Lee Smith?

THE WITNESS: I never laid eyes on him.

. . .

THE COURT: They said to you that he was the one that did this homicide?

THE WITNESS: They said he the one that did it.

(PC-R. trans 58-59). Ms. Olige testified that the police told her that Ms. McGriff and Mr. Davis had already identified Mr. Smith as the man they saw on the night of the murder (PC-R. trans 75). Ms. Olige believed what the police told her about the other witnesses (PC-R. trans 76).^[12]

Ms. Olige explained on cross-examination that she would not have chosen Mr. Smith from the photo line-up if not for police coercion:

Q Okay. Do you recall picking out number two?

A They was pointing number two out to me.

Q They were pointing number two out to you? Have you ever testified in any court of law that Detectives Scheff and Amabile and/or Amabile told you to pick out number two?

A They kept on pointing at that one saying this is the one.

Q At the time you made the selection?

A What selection?

Q At the time that you did this photo lineup, originally did this photo lineup?

A They brought these pictures to me and they kept pointing at number two telling me that this is the one, this is the one.

Q Okay.

THE COURT: So in other words, you're saying the only reason you pointed out number two is because they kept saying this is the one, this is the one?

THE WITNESS: Uh-huh.

THE COURT: You're saying but for them saying that to you, you would not have picked out number two?

THE WITNESS: No, I wouldn't have picked number two out.

THE COURT: You wouldn't have?

THE WITNESS: I wouldn't have picked none of those that he just showed me. I wouldn't have picked none of them.

(PC-R. trans 106-08). Ms. Olige admitted that she swore under oath that the police had not pressured her; she explained why she made that statement: "I had to say it." (PC-R. trans 116).

The same pressure was exerted upon Ms. Olige at the time of Mr. Smith's trial:

Both of the police officers told me that go in there and tell the truth. We captured the person that did this to this little girl here and he needs to be off the street.

Mr. D^[13] told me that he would not harm me, that everybody was going to be around in the courtroom and he cannot do anything to you. Just go in there and just tell the truth.

And they kept on saying this person here is bad, he need to be off the street, and just go in there and just tell the truth. They just kept on telling me that over and over and over and over again.

(PC-R. trans 69). Ms. Olige testified that she was afraid to go into the courtroom because "[t]hey said they captured the person that killed that little girl, and I was afraid to go in the courtroom on account of death . . . . and looking at the person in there in their face knowing that they did an awful crime like that." (PC-R. trans 152).

However, when Ms. Olige saw Mr. Smith in court at his trial, she knew that he was not the man she saw on the night of the murder. Ms. Olige explained that when she saw Mr. Smith in court at his trial, it was the first time she had seen him live (PC-R. trans 71). She realized that he was too thin and did not have the droopy eye that both she and Mr. Davis saw on the night of the murder (PC-R. 70).^[14] Ms. Olige explained why she identified Mr. Smith despite her realization that he was the wrong man:

Q Okay. Now, earlier you said -- Well, why did you point to [Mr. Smith] and say he was the man you saw when you were in court?

A I was under a lot of pressure, other people in the neighborhood, what they were saying. `Um, I was very hurt because I know how the mother feel, how the mama had been under a lot of stress and she was hurt.

(PC-R. trans 72). Ms. Olige's testimony on recross was consistent about the pressure that caused her to identify Mr. Smith at his trial:

Q You had no hesitation in pointing him out and saying that's the man I saw on April 14th, 1985?

A The police told me that Miss Dorothy and Gerald say that is the man and I went ahead and said also because they said the man needed to be off the street and he hurt that little girl and that was him.

(PC-R. trans 161).

Ms. Olige testified that the first time she saw a picture of Eddie Lee Mosley was 1989 when Jeff Walsh, an investigator working for Mr. Smith's post-conviction counsel, visited her (PC-R. trans *). She also testified consistently with her trial testimony that she was shown two photo line-ups: one including a picture of James Freeman and the other including a picture of Frank Lee Smith (PC-R. *).

In response to Ms. Olige's testimony identifying Eddie Lee Mosley as the man she saw on the night of the crime, the State presented Detective Richard Scheff and Dorothy McGriff. Detective Scheff testified that he and Detective Amabile considered Eddie Lee Mosley a suspect in this case "because he was notorious for committing crimes of violence in the area" and that "simply in an abundance of caution I considered him a suspect." (PC-R. trans 349). Detective Scheff testified that he showed a photo line-up of Eddie Lee Mosley to Ms. Olige, Ms. McGriff, and Mr. Davis (PC-R. trans 349-50). He identified the Mosley line-up and testified that the picture accurately depicted Mosley as he appeared at the time of the Whitehead murder (PC-R. trans 370). Detective Scheff explained that he encountered Mosley in "the latter part of February of 1985" and again during "the latter part of April of 1985 through May and June." (PC-R. trans 370). According to Detective Scheff, at that time Mosley's hair was close-cropped and his beard was neatly trimmed (PC-R. trans 373).

The State's other witness at the evidentiary hearing was Dorothy McGriff, the victim's mother. Ms. McGriff testified that the police showed her a picture of Eddie Lee Mosley in a line-up of six pictures and that she told them he was her cousin (PC-R. trans 218). Ms. McGriff testified that the picture of Mosley was in the same line-up that included Mr. Smith's picture (PC-R. trans 219-20). On cross-examination, Ms. McGriff admitted that at the 1991 evidentiary hearing she testified that she saw Mosley's picture not in a line-up but in a picture book:

Q Do you remember did they actually show you a lineup at one point in time with about six pictures in it? And your answer: No, there wasn't no six pictures. It was like a photo book. Do you know -- do you know how to get a photo book? And then the question, yes. I looked through the book and the book -- skimmed through to look in the picture book.

(PC-R. trans 234). On redirect, Ms. McGriff testified that she knows the difference between a photo line-up and a photo book (PC-R. trans 236).

Detective Scheff also testified about Eddie Lee Mosley's modus operandi and explained why he believed Mosley's modus operandi did not match the facts of this case:

A In all the cases that we've been able to link to Eddie Lee Mosley - and by link I mean more than simply just suggest that it might be Mr. Mosley - the victims are adult female prostitutes primarily or picked up in a bar. The sexual activity occurs outside in an open field and the manner of death is manual strangulation without a ligature being used. Also there is no trauma, blunt trauma.

Q And in this case you have a --

A This case I have a child victim, I have a ligature, I have blunt trauma, and I have sexual activity occurring indoors.

(PC-R. trans 397). Detective Scheff explained why he used a Mosley line-up in this case despite the alleged differences in his modus operandi:

I thought Eddie Lee Mosley was an individual that I was looking at as a suspect in two other cases that I subsequently arrested him on. He was notorious in the area and a decision was made simply to put his picture in a photo lineup and see how the witnesses reacted.^[15]

This was prior to us getting the composite. I don't think I would have even done that had we gotten the composite first because I would have looked at the composite and said that that's not Eddie Lee Mosley or at least the Eddie Lee Mosley that I knew.^[16]

(PC-R. trans 460).

Detective Scheff was unable to explain the inconsistency between his hearing testimony regarding the Mosley line-up and all the other evidence in the case. In regard to his trial testimony that he did not show a line-up including Mosley's picture to the witnesses (R. *), Scheff explained that he made a mistake (PC-R. trans 375). Detective Scheff offered the following explanation for his failure to mention investigating Mosley or showing the witnesses a Mosley line-up at his deposition:

Okay. I did not consider at the time I was giving my deposition to Tom Gallagher the issue of Eddie Lee Mosley to be one of any importance at all. I based that on the fact that there was no link between Eddie Lee Mosley and the murder of Shandra Whitehead.

Tenuous or not, there was no witness, there was nothing to suggest that Eddie Lee Mosley was a suspect in this case other than the fact that he was a notorious person in this area.

. . .

And so I considered it a very trivial matter. Obviously, it's taken on added importance over the years, but at that point in time it really didn't seem to be relevant.

(PC-R. trans 437-58). This answer would suffice only if Scheff had been asked a specific question about "relevant suspects." However, his opinion that Mosley was irrelevant to the case does not satisfactorily explain why he failed to mention showing the witnesses a Mosley line-up when he was repeatedly asked whether anything else had been done on the case. His explanation also fails to establish any difference between Mosley and the other suspects who were allegedly eliminated but were mentioned during his deposition.

Detective Scheff was also questioned about his handwritten notes which include an account of the investigation detailing the activity done each half hour (Defense Exhibit 7). The notes do not mention showing a line-up including Eddie Lee Mosley to Chiquita Lowe, Dorothy McGriff, and Gerald Davis (PC-R. trans 444). Detective Scheff's notes also do not refer to his showing a picture book of 150 pictures to Ms. McGriff as he testified at the 1991 hearing (PC-R. 449). The notes make no mention of Eddie Lee Mosley at all although, as with his deposition, they do mention other suspects who were investigated such as James Freeman, Neely Williams, and Edwin McGriff (PC-R. trans 444). The notes specifically indicate that Scheff checked the criminal histories of Edwin McGriff and James Freeman for similar crimes (Id.). There is no similar notation that Scheff checked Mosley's criminal background although he testified that he investigated Mosley's criminal history and was familiar with his modus operandi (PC-R. trans 445).^[17]

Detective Scheff could not adequately explain his failure to mention the Eddie Lee Mosley line-up in his handwritten notes, his final report, his deposition and his trial testimony. He claimed in 1998 that Mosley was not a suspect (PC-R. trans 468), while at Mr. Smith's trial he testified that Mosley was a suspect (R. *). He offered the following explanation:

I differentiated Eddie Lee Mosley to any of the other names that you have mentioned because the other names that you have mentioned, there was some link; that was somebody said, you know, the family came forward and they were suspicious. There was some link, tenuous though it might be, between that person, that potential suspect and the case.

In Eddie Lee Mosley's situation there was nothing to suggest that he was the suspect other than pure speculation on the part of the sheriff's office. And so there was a distinct difference in the way I would characterize him in this case, at least in my mind there was.

(PC-R. trans 455). This differentiation in Detective Scheff's mind is insufficient to explain the inconsistency between his hearing testimony that he showed a Mosley line-up to the three witnesses and all the other evidence in the case indicating that a Mosley line-up was never used.

Counsel for Mr. Smith presented additional testimony contrary to Detective Scheff's hearing testimony regarding the Mosley line-up. Mr. Smith's trial attorney, Andrew Washor, testified that during discovery he received two photographic line-ups -- one of Mr. Smith and one of James Freeman (PC-R. trans 251). Mr. Washor testified that he received nothing about Eddie Lee Mosley during discovery (PC-R. trans 252, 254). Mr. Washor was also called as a rebuttal witness after the Mosley line-up was introduced during Detective Scheff's testimony. After examining the Mosley line-up, Mr. Washor testified that it did not look familiar and repeated his testimony that he did not receive a Mosley line-up at the time of Mr. Smith's trial (PC-R. trans 527-28).

William Dimitrouleas, the prosecutor on Mr. Smith's case who is now a federal district court judge, also testified in rebuttal regarding the Mosley line-up. Judge Dimitrouleas testified that the trial judge had granted a defense motion requesting all photographs and photographic line-ups used during the investigation. Judge Dimitrouleas testified that he would have turned over all photographic line-ups used during the investigation even if Mr. Washor had not filed a motion specifically requesting them (PC-R. trans 509). Judge Dimitrouleas examined the Mosley line-up that was produced by Detective Scheff and testified that he had no independent recollection of ever seeing the line-up before (PC-R. trans 514). He explained:

[I]t's an unusual arrangement for a photographic line-up. I'm not saying I never saw it but I would think that a line-up where it wasn't three across and three across, it would be something that I might remember.

Q But you don't recall ever seeing this?

A Never recall seeing that.

Q And in your experience the formation of the lineup is different than your normal line-up?

A Yeah. Normally they'll have three pictures across and three pictures on the bottom or some other situation.

Q Two parallel lines?

A Usually that's what they have. That's an unusual configuration that I might remember if I had seen that before.

(PC-R. trans 514). Judge Dimitrouleas testified that he would have corrected Detective Scheff's trial testimony that there was no Mosley line-up shown to the witnesses if he knew that Scheff was mistaken or lying (PC-R. trans 506-07).

Mr. Washor also testified that the information regarding Eddie Lee Mosley that was unavailable to him at the time of trial -- Ms. Lowe's identification, police reports naming Mr. Mosley as a suspect, the Mosley photograph that Ms. Lowe was shown -- would have enabled him to support his theory that Mr. Smith was innocent. Mr. Washor was shown a composite exhibit of police and autopsy reports from sexual assault and murder cases in which Mr. Mosley was a suspect.^[18] He testified that he would have used the reports to compile a reverse William's Rule motion and to question Detectives Scheff and Amabile about their elimination of Mr. Mosley as a suspect (PC-R. trans 272). In regard to the reverse Williams' Rule motion, Mr. Washor testified that the reports revealed several details that were similar to the facts of this case. First, Mr. Mosley approaches people on the street, says that he is from New York and asks the person about doing drugs with him (PC-R. 273). This pattern was followed by the person who approached Gerald Davis on the night of the murder (R. **).^[19] Several of the reports identifying Mr. Mosley as the perpetrator mention a "droopy eye." (PC-R. trans 274). Chiquita Lowe and Gerald Davis both included this unique characteristic in their descriptions of the man they saw (R.**). Mr. Washor also testified about similarities between the crimes Mosley was suspected of and the Whitehead murder: all involved African-American female victims who were raped or raped and murdered (PC-R. trans **). Mr. Washor also testified that the reports indicated that Mr. Mosley used different methods to kill his victims, in contrast to Detective Scheff's testimony that Mosley was eliminated as a suspect because he only kills by manual strangulation. The reports show that Mosley used different weapons (including a knife, a cane, and a gun) and that on several occasions he strangled his victims with a ligature.^[20] In addition to the similarity of the crimes, the rapes and murders of which Mosley was suspected were all committed in the same geographical location as the Whitehead murder (PC-R. trans 274).^[21] Regardless of his success with a reverse Williams' Rule motion, Mr. Washor testified that he would have used the reports to question the detectives about the elimination of Mr. Mosley as a suspect; if these reports had been available to Mr. Washor, the jury would have known that Mr. Mosley was a suspect in ** rapes and murders in the same geographical area as Shandra Whitehead's rape and murder.

SUMMARY OF ARGUMENT

I HEREBY CERTIFY that a true copy of the foregoing Initial Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on

BRET B. STRAND

Florida Bar No. 0780431

Assistant CCRC

1444 Biscayne Blvd.

Suite 202

Miami, FL 33132-1422

(305) 377-7580

Attorney for Mr. Smith

Copies furnished to:

Celia Terenzio

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^[1]Howard Seiden, the State's expert serologist, tested the vaginal swab for blood typing and detected no blood inconsistent with the victim's (R. 839). The victim had blood type O; Mr. Smith has blood type B (R. 836-37). Mr. Smith's attorney's post-trial request to have the sperm cells tested to determine a blood type was denied after the State argued that such testing would be "an exercise in futility." (R. 1382). The sperm cells, which are the subject of Mr. Smith's motion for DNA testing, have never been tested.

^[2]At the evidentiary hearing, the State played Ms. Lowe's taped statement given to Detective Scheff (PC-R. trans 390-94). The transcript indicates that Ms. Lowe saw the man with the television while on the tape she clearly states that "my grandma say" the man with the television looked like the composite (PC-R. trans 407-08), indicating that the belief that the man with the television was the man seen near the crime scene did not originate with Ms. Lowe. Detective Scheff admitted there was a mistake in the transcript but testified that it was not his responsibility as the lead detective on the case to ensure the accuracy of transcipts that are provided to defense counsel (PC-R. trans 400).

^[3]Detective Amabile, who interviewed Ms. McGriff at the hospital, confirmed that she provided no details about the man's face except that he had a beard (R. 920). In contrast, Detective Scheff, who did not interview Ms. McGriff, testified that he believed Ms. McGriff did see the man's face (R. 1043, 1068).

^[4]In her initial statement to the police, Chiquita Lowe also told the police that the man she saw did not have any scars on his face (R. 691).

^[5]The tape recording of Mr. Davis' first statement malfunctioned. When Detective Amabile was informed of the problem, he attempted to fix the tape himself: "I took the tape cassette apart myself and started playing with it." (R. 952). To compensate for the malfunction, the detectives took a second complete statement from Mr. Davis after Mr. Smith had been arrested and identified in the live line-up (R. ).

^[6]This testimony is consistent with that of Chiquita Lowe that the police were unduly suggestive when they showed her the first photo line-up containing a picture of James Freeman who was then the primary suspect (R. 704-05).

^[7]footnote needed here about change in rules about impeaching own witness -- happened after Smith trial

^[8]Ms. McGriff testified that she saw the man's face so briefly that she could not tell whether he had glasses on (R. 654).

^[9]In his deposition, Detective Scheff testified that the man Mr. Davis saw was wearing a plaid shirt; Scheff speculated that the man was wearing a plaid shirt beneath the windbreaker and had taken off the jacket and left it in the abandoned truck between his conversations with Lowe and Davis (R. 1017). The man seen by Ms. McGriff was wearing an orange t-shirt with writing across the chest (R. 649-50).

^[10]Ms. Lowe's description of the suspect's physique is consistent with that of the other witnesses: Mr. Davis told the police that the man was muscular with a chubby stomach (R. 766, 770-71), and Ms. McGriff described the man as a husky football player (R. 653). Ms. McGriff refused to answer when Mr. Smith's trial attorney asked her whether Mr. Smith looks like a husky football player (R. 660).

^[11]Detective McCann, who arrested Mr. Smith, testified that he looked the same at the time of trial as he had at his arrest four days after the crime and that Mr. Smith did not appear to have gained weight (R. 856a). The arrest reports indicate that Mr. Smith was GET HEIGHT AND WEIGHT.

^[12]The police lied to Ms. Olige. Mr. Davis refused to make an identification from the photo line-up and insisted on being shown a live line-up (R. ). The live line-up was conducted on DATE, (R. ), TIME after the police told Ms. Olige that Mr. Davis had identified Mr. Smith.

^[13]"Mr. D" refers to William Dimitrouleas, the Assistant State Attorney who prosecuted Mr. Smith.

^[14]In regard to Mr. Smith's size being different from that of the man seen on the street, Detective McCann testified that Mr. Smith's weight did not change from the time of his arrest (NUMBER days after the murder) until his trial (R. ).

^[15]Apparently Detective Scheff's "investigation" of Eddie Lee Mosley went no further than this. He did not interview Mosley, he did not determine whether Mosley was familiar with Ms. McGriff's work schedule, and he did not determine whether Mosley had an alibi for the night of the murder (PC-R. trans 457). Most significantly, Scheff did not attempt to determine whether Shandra and her brother would have let Mosley (their uncle) into the house (PC-R. trans 470-71). These questions are particularly important in light of the testimony of Ms. McGriff's sister Shirley that due to the dilapidated condition of the house, only the family knew how to get inside (R. *).

^[16]In contrast to Scheff's testimony that Mosley did not look like the composite sketch of the suspect in this case because he was clean shaven and bald at the time, a police report dated one month before the Whitehead murder describes Mosley's appearance as "unkempt" and indicates that he had a large afro (Defense Exhibit *, PC-R. *; Washor testimony trans 328-31). See also PC-R. * (grim article attached to reply to state's response to motion for rehearing indicating that it looks like Mosley sat for a portrait).

^[17]In regard to Mosley's modus operandi, Detective Scheff admitted at the 1991 hearing that he did not investigate Mosely's prior crimes for similarities to the way the suspect in this case approached Gerald Davis; Scheff explained that he "didn't get that far." (PC-R. trans 454).

^[18]The autopsy reports were received by Mr. Smith's post-conviction counsel in September 1998 from the State Attorney's Office. Although autopsy reports do not identify a suspect in unsolved murder cases, the reports were provided in response to a defense request for all of Mr. Mosley's files. In addition, several of the cases were used in a William's Rule motion filed by the State against Mr. Mosley in a 19** rape case.

^[19]Detective Scheff testified that when he eliminated Mosley because his modus operandi did not match the facts of this crime he did not consider the way in which Gerald Davis was approached (PC-R. **).

^[20]Although the cause of death in this case was blunt force trauma to the head, the victim was found with her pajama bottoms tied tightly around her neck (R.*). In several of the cases, Mr. Mosley strangled his victims with a piece of their own clothing (PC-R. **). The fact that Shandra Whitehead was killed by the trauma to her head implies that the ligature around her neck was "unnecessary" and may have been part of the perpetrator's method of committing rape. REWORD THIS FOOTNOTE BUT IDEA IS THAT MOSLEY GOT OFF ON STRANGLING VICTIMS AS HE RAPED THEM MAKES SENSE THAT HE DIDN'T USE PAJAMAS TO STRANGLE HER BUT PROBABLY DID IT DURING RAPE EITHER BEFORE OR AFTER HITTING HEAD

^[21]mention map that was excluded and exact measurement of area