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