Supreme Court of Florida

____________

Nos. SC89710 & SC01-2267

____________

Appellant,

vs.

Appellee.

____________

Petitioner,

vs.

Respondent.

[March 6, 2003]

SHAW, Senior Justice.

George James Trepal appeals two orders of the circuit court denying his first

and second motions for postconviction relief under Florida Rule of Criminal

Procedure 3.850 following evidentiary hearings on both motions. We have

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jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm. Trepal also has filed in

this Court a petition for a writ of habeas corpus. We have jurisdiction. See art. V,

§ 3(b)(9), Fla. Const. We deny the petition.

I. FACTS

The facts of the underlying crime are set forth fully in this Court's opinion on

direct appeal, which provides as follows in relevant part:

Trepal was convicted of the first-degree murder of Peggy Carr.

Trepal also was convicted of six counts of attempted first-degree

murder (other members of the Carr household), seven counts of

poisoning food or water, and one count of tampering with a consumer

product (Coca-Cola). . . .

. . . .

We find the evidence sufficient to support a verdict of

premeditated murder. There is substantial, competent evidence that

prior to the death of Peggy Carr, the Carrs and Trepals, neighbors in

Alturas, Florida, had had numerous altercations. Trepal once

threatened one of the Carr children by saying, "I'm going to kill you."

Shortly before Peggy Carr, her son, Duane, and her stepson, Travis,

were hospitalized for thallium poisoning in October 1988, the Carrs

received a note threatening: "two weeks to move out of Florida forever

or else you will all die." Thallium-laced Coca-Colas were found in the

Carr household, after weeks of searching, by state and federal

environmental agencies. (The Carrs had vacated the house during the

week of the hospitalizations and never had moved back.) When their

next-door neighbor, Trepal, was asked why anyone would want to

poison the family, he said, "to get them to move out, like they did."

Trepal had researched and written a pamphlet about voodoo for

a Mensa murder weekend, which read, in part:

Few voodooists believe they can be killed by psychic

means, but no one doubts that he can be poisoned.

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When a death threat appears on the doorstep, prudent

people throw out all their food and watch what they eat.

Hardly anyone dies from magic. Most items on the

doorstep are just a neighbor's way of saying, "I don't like

you. Move or else!"

The themes (move or else) in the threatening note and in the

voodoo pamphlet were similar.

Trepal told Goreck, an undercover agent, that the poisonings

were "just a personal vendetta." Contrary to Trepal's assertion that he

went to his wife's office every day, in fact he stayed at home or went

to his own office each day. There was a window of time when the

Carr household was unoccupied and it was undisputed that Trepal

was able to surveil the household. There was testimony that the Carr

house often was left unlocked. The Trepals and Carrs shared a water

supply; Trepal's presence on the Carr property thus would not have

been unusual.

The evidence at trial showed that Trepal is extremely intelligent,

and has a highly developed knowledge of chemistry. Evidence also

was presented that thallium is a by-product of amphetamine

production and Trepal was the chemist for an amphetamine laboratory

in the 1970s. Thallium is a poison so toxic that it has been banned by

the Food and Drug Administration since 1982. Because of its toxicity,

its sale and distribution are controlled and recorded, and it is not

available to the general public, but only to universities and research

centers. A bottle of thallium was found in Trepal's garage in Alturas.

A hand-assembled journal, bearing Trepal's prints and containing

information on poisons, including thallium, and data on the autopsy

detection of poisons, was found in Trepal's Sebring home. A great

many chemicals were found there, along with chemical equipment.

The Agatha Christie novel, Pale Horse, dealing with murder by

introducing thallium into a household, also was found there.

Evidence was presented that of the chemical forms of thallium

that exist, only one form can be introduced into Coca-Cola without

producing noticeable changes in the drink. Evidence was presented

that the bottle caps had been pried off the Coca-Cola bottles.

Evidence was introduced that worldwide, Coca-Cola found no other

1. The trial court found that the following aggravating circumstances had

been established:

The judge found three statutory aggravating factors: previously

convicted of another capital felony or of a felony involving the use or

threat of violence (the contemporaneous attempted-murder

convictions); great risk of death to many persons (introducing

poisoned Coca-Cola into the multiple-children Carr household); and

committed in a cold, calculated, and premeditated manner without any

pretense of moral or legal justification (carefully removing the cola

bottle caps, dissolving the poison in solution, adding the solution to

the bottles, carefully replacing the caps, and then secreting the cola

into the Carr household).

Trepal, 621 So. 2d at 1363 (footnote omitted).

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incidences of tampering with the product, and received no ransom

note after the poisoning. Evidence also was presented that a

bottle-capping machine was seen among the items in the Trepals'

garage when they moved into their Alturas home.

Trepal v. State, 621 So. 2d 1361, 1363-65 (Fla. 1993) (footnotes omitted).

The jury recommended death by a nine-to-three vote, and the judge imposed

2. The trial court found that the following statutory mitigating circumstance

had been established:

[The judge] found one statutory mitigating factor (no significant

history of prior criminal activity—only one conviction for illegal

manufacture of amphetamines) . . . .

Id. (footnote omitted).

3. The trial court found that the following nonstatutory mitigating

circumstances had been established:

[The judge] found . . . several nonstatutory mitigating factors (happy

childhood and marriage; high intelligence; above-average adjustment to

prison life; and kind and generous).

Id.

4. This Court summarized the issues that Trepal raised on direct appeal as

follows:

Trepal raises seven issues on appeal: 1) the evidence was

insufficient to support the conviction for first-degree murder; 2) the

bottle of poison found in Trepal's garage should have been

suppressed; 3) evidence linking Trepal to the crime was erroneously

admitted; 4) Trepal did not "cause" Peggy Carr's death, rather the

treating physician did (raised for the first time on appeal); 5) counsel's

waiver of jury instruction on maximum and minimum penalties

rendered him ineffective; 6) failure to give an instruction on

circumstantial evidence was an abuse of discretion; and 7) the death

penalty is improper.

Id. (footnote omitted).

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5. In the interim, Trepal filed an interlocutory appeal regarding the disclosure

of public records. See Trepal v. State, 704 So. 2d 498 (Fla. 1997).

6. Because of the extraordinarily convoluted manner in which Trepal's

claims were presented, the circuit court in its order denying relief simply

summarized the claims:

The defendant was inadequately represented by three attorneys

who had little to no criminal law experience. The case was primarily

handled by the youngest and least experienced of the attorneys. The

attorneys failed to present the jury with evidence of other suspects or

of a possible separate poisoning attempt through the use of arsenic.

The state committed a Brady violation by failing to disclose a

handwritten note from Peggy Carr, the victim of the homicide, to her

husband, Pye Carr. The note would have assisted defense counsel in

"pointing the finger" at Pye Carr as the suspect. Law enforcement's

obsession with potential book and movie deals caused them to

conduct a ruthless investigation of the defendant, ignoring other

suspects and Mr. Trepal's constitutional rights. The Polk County

Sheriff's Office conducted an intrusive undercover investigation of Mr.

Trepal for nearly a year in an attempt to incriminate an innocent man.

The investigation was progressing very slowly when law enforcement

conveniently located a bottle containing thallium (the poison used to

kill Peggy Carr) in the defendant's abandoned garage.

After defense counsel's ineffective representation of the

defendant, and the aforementioned actions of the state and law

enforcement resulted in a first degree murder conviction, counsel

performed inadequately at the penalty phase as well. Despite knowing

that they could introduce evidence that the defendant was intellectually

gifted, had a difficult childhood due to a speech impediment, and had

numerous friends from MENSA who would testify that the defendant

was nice, friendly and non-violent, defense counsel failed to present

any evidence in mitigation. The combination of ineffective assistance

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filed in circuit court an initial rule 3.850 motion and on March 21, 1996, an amended

of counsel during all phases of the trial, the state's Brady violation, and

the actions of law enforcement led to an unwarranted conviction and

the subsequent sentence of death.

7. See Office of the Inspector General, U.S. Dep't of Justice, The FBI

Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in

Explosive-Related and Other Cases (1997).

8. The circuit court in its order denying relief summarized Trepal's claims as

follows:

The claims are as follows: (1) newly discovered evidence

shows that the prosecution relied on unsound scientific evidence; (2)

counsel were ineffective because they failed to discover the new

evidence; (3) the cumulative effect of errors warrants a new trial; (4)

Martz mislabeled charts; (5) Q1 produced thallium III on an MS test;

(6) he failed to test unadulterated Coke with thallium nitrate; (7) he

failed to run blanks; (8) he could not explain results which indicated

the presence of sulfate and chloride on the MS test; (9) his conclusion

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an evidentiary hearing on several claims and denied relief. Trepal appealed and,

while the appeal was pending in this Court, the Office of the Inspector General of

the United States Department of Justice ("OIG") issued a report on April 15, 1997,

that was highly critical of the work performed by the FBI Crime Laboratory in

This Court consequently remanded this case to the circuit court to give

Trepal an opportunity to peruse the OIG report and file a second rule 3.850

motion. Trepal on September 1, 1998, filed a second amended rule 3.850 motion,

that Q206 contained pure thallium I nitrate was not supported by his

testing method or test results; (10) the wire technique used to ionize

certain ions was an unproven testing method; (11) XRD results

indicated the presence of thallium chloride with no indication of

thallium nitrate; (12) Martz failed to verify the conditions under which

he differentiated between nitrate, chlorate, and phosphate; (13) his

notes indicate that trace amounts of nitrate were detected in

unadulterated Coke, but he testified to the contrary; (14) Martz

incorrectly labeled the silver nitrate test results; (15) his lab notes

contain insufficient detail; (16) Martz testified that Q1-3 contained

nitrate while his report states that Q1, Q2 and Q3 are "consistent with

the presence" of nitrate; (17) he testified falsely that he performed two

tests on Q1, Q2 and Q3, and two tests on Q206; (18) he failed to

perform IC on Q3 but testified that he had; (19) newly discovered

evidence of bottle cap expert testimony shows Havekost testified

falsely; (20) Martz's opinion that thallium nitrate was added is

scientifically unfounded and therefore false; and (21) Martz testified

falsely that the DP test tests for nitrates.

9. The hearing was held in February and July 1999, having been stayed

during an interlocutory appeal. See Trepal v. State, 754 So. 2d 702 (Fla. 2000).

10. In his present rule 3.850 appeal, Trepal raises the following claims:

(1) "no guilt phase adversarial testing"; (2) "law enforcement conflict of interest";

(3) "juror misconduct"; (4) "attorney conflict of interest"; (5) "no penalty phase

adversarial testing"; and (6) "public records."

11. In his petition for a writ of habeas corpus, Trepal raises the following

claims: (1) "the state was erroneously allowed to introduce testimony based solely

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second rule 3.850 motions. Trepal also has filed in this Court a petition for a writ

on hearsay to establish a link between Mr. Trepal and the brown bottle, and this

Court erred in failing to address this issue on direct appeal, or appellate counsel

provided ineffective assistance in failing to raise it properly;" and (2) "appellate

counsel failed to raise on appeal numerous meritorious issues which warrant

reversal of either or both the convictions and sentences."

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II. RULE 3.850 MOTIONS

As noted above, Trepal raises six claims in his present appeal of the circuit

court's orders denying rule 3.850 relief. The claims relate to both his first and

second rule 3.850 motions and contain numerous subclaims. The bulk of Trepal's

postconviction appellate argument focuses on the first claim: no adversarial testing

of the issues in the guilt phase of the trial. This claim is divided into three

subclaims: (a) false and inadmissible scientific testimony, (b) ineffectiveness of trial

counsel, and (c) other exculpatory evidence. Most of his argument on this claim

focuses on the first subclaim, which concerns improprieties in the testing

procedures at the FBI lab. This subclaim was the focus of the second evidentiary

hearing and is the heart of his present appeal. Accordingly, we discuss this

subclaim at length.

While the first subclaim pertains exclusively to Trepal's second rule 3.850

motion, the second and third subclaims pertain to his first rule 3.850 motion and

were addressed at the first evidentiary hearing. We also discuss these latter two

subclaims. Finally, we discuss Trepal's fifth claim (ineffectiveness of penalty phase

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counsel), which also pertains to his first rule 3.850 motion and was addressed at

length at the first evidentiary hearing.

III. SUBCLAIM (a): FALSE SCIENTIFIC TESTIMONY

In his first subclaim, Trepal asserts that the trial testimony of FBI specialist

Roger Martz was false and inadmissible, that his testimony impermissibly tainted

the trial, and that he (Trepal) thus is entitled to a new trial. This subclaim was the

focus of the second evidentiary hearing below and the parties presented extensive

testimony on this issue.

A. Factual History

The circuit court, in its order denying relief, summarized the factual history

of the case relating to this subclaim:

In late October 1988, Peggy Carr, her son, and stepson became

seriously ill and were hospitalized. Peggy Carr later died. Doctors

determined that she had died of thallium poisoning. Evidence taken

from the victims' home included five empty 16 ounce glass Coca-Cola

bottles and three full bottles. The empty bottles were sent to the

Florida Department of Health and Rehabilitative Services Lab in

Jacksonville. The lab determined that thallium was present; it did not

attempt to determine the type of thallium.

In December 1988, the FBI received three unopened Coca-Cola

bottles recovered from the victims' residence and examined them to

determine whether they contained thallium. In the same month, the

Coca-Cola Company began testing samples of unadulterated Coca-

Cola with various forms of thallium to determine what types of

thallium could have been added without altering the taste or

appearance of the beverage. Frederick Reese, an analyst for the

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Coca-Cola Company, tested for thallium phosphate, thallium formate,

thallium malonate, thallium sulfate, thallium I nitrate, and thallium III

nitrate. Reese discovered that both thallium sulfate and thallium I

nitrate dissolve in Coke without changing its appearance or foaming

out of the bottle. The Coca-Cola Company provided its test results to

the Polk County Sheriff's Office and the FBI.

Donald Havekost, a special agent in the Elemental Analysis Unit

of the FBI Laboratory, examined the residue samples taken from the

empty bottles along with the three full Coke bottles taken from the

Carr home. FBI lab personnel labeled the full bottles Q1, Q2, and Q3.

By means of a procedure known as Inductively Coupled Plasma

Atomic Emission Spectrometry, Havekost established that the residue

samples and Q1, Q2, and Q3 contained thallium. Havekost passed

along Q1, Q2, and Q3 to Roger Martz, a Special Agent in the

Materials and Analysis Unit, with a note indicating that thallium had

been identified and requesting additional testing to determine what ion

was associated with the thallium compound.

In December 1989, investigators recovered a small glass bottle

containing a whitish powder from Trepal's garage. Investigators sent

the bottle to the FBI lab for analysis. FBI lab personnel labeled the

bottle Q206, and Havekost conducted testing to determine its

contents. Havekost concluded that the powder contained a thallium

ion. Further testing established the presence of an oxidizing ion

consistent with the presence of nitrate. Testing on the Q206 sample is

not in serious dispute.

In 1994, the Office of the Inspector General of the United States

Department of Justice (OIG) began an investigation into laboratory

practices at the FBI Crime Lab in Washington, D.C. The FBI also

conducted an internal investigation into its lab practices. Part of both

investigations focused on Martz's work in the Trepal case. Martz's

work on Q1, Q2, and Q3 was the focal point of the evidentiary

hearing.

After summarizing the factual history relating to this subclaim, the circuit court

addressed the testimony that was adduced at the second evidentiary hearing,

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virtually all of which related to this subclaim.

B. Testimony

The circuit court summarized the testimony of the various witnesses who

testified at the second evidentiary hearing as follows:

At the evidentiary hearing, Trepal presented testimony regarding

testing procedures used on Q1, Q2, and Q3, and whether there was

any chemical connection between Q1, Q2, and Q3, and Q206. The

identification of the substance in these items is important as it relates

to Q206. Q206, found in Trepal's garage, contained a whitish powder

identified as thallium nitrate. The prosecution never directly claimed

that the thallium used in the poisoning came from Q206; however, if

the three samples had been a form of thallium different from Q206,

this would have been clearly favorable to the defense. Testifying at the

evidentiary hearing were Roger Martz, Thomas Jourdan, Steven G.

Burmeister, and James Cadigan, Special Agents with the FBI Crime

Lab; Frederick Whitehurst and Donald Havekost, former FBI Special

Agents; and Marland D. Dulaney, a forensic toxicologist.

A. ROGER MARTZ

Martz was Unit Chief in the Chemistry and Toxicology Unit at

the FBI Laboratory. At the time of the hearing, the FBI had placed

Martz on a temporary security assignment for two years pending the

outcome of the internal FBI investigation into its laboratory practices.

To facilitate review, the court will summarize both Martz's trial

testimony and his testimony from the evidentiary hearing. At trial,

Martz testified as a prosecution witness and offered testimony

regarding the testing and analysis of Q1, Q2, and Q3. The following

excerpt of the trial is direct examination of Martz.

Q: So you were asked when you were given those

Coca-Cola samples to figure out what form of thallium

was in those Coca-Colas?

A: That's correct.

Q: What did you do in order to answer that question

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Agent Martz?

A: Thallium commonly exists in several different salt

forms. So I did some chemical tests to try and determine which

salt form of thallium existed in the Coca-Cola bottles.

Q: What kind of chemical tests did you do to make that

determination?

A: When I did a test called diphenylamine I got a blue

color. . . .

Q: Okay. Now, is diphenylamine a machine? Is it a

substance? Tell the jury what it is.

A: It's a chemical which is mixed with sulfuric acid. And

when you pour that into a solution which contains a nitrate you

get a blue color.

Q: Did you do that test with regard to each of the three

Coca-Cola samples?

A: Yes, I did.

Q: Did you reach a conclusion based on that test?

A: Yes, I did.

Q: And what was your opinion based on that test?

A: Based on that test I concluded that thallium nitrate was

added to the Coca-Cola.

Q: Now, did you have some samples of Coca-Cola,

unadulterated control samples that had been submitted to the

lab?

A: Yes, I did.

Q: Did you test any of those samples with diphenylamine

to ensure that Coca-Cola itself did not react with a blue color?

A: Yes, I did.

Q: And what was the result of that test?

A: No nitrates were present in the unadulterated Coca-

Cola.

Q: Were you able to do any tests to ensure that a sulfate

or some other salt did not react in a blue color?

A: Yes, I did. Sulfate will not react with a blue color, but

it will react with other chemicals which I did do on the Coca-

Cola.

Q: And did you have any positive tests indicating that

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thallium sulfate might be present in the Coca-Cola?

A: No. I did not.

Q: Now, did you do any other tests in order to determine

whether there was thallium nitrate in there, or was that the only

test with regard to that?

A: I did one other test called ion chromatography.

. . . .

A: Which is used to separate out ions. It's a separation

technique in the form of liquid chromatography which is using a

liquid passing through a solid to separate out different ions.

The different ions will come out at different times. In this

particular case, when I tested the Coca-Cola the results were

positive for the nitrate ion.

Q: Now, is that a test which is just done with wet

chemistry, or does that utilize some form of equipment?

A: It uses equipment. You pass the liquid through a

solid phase and then you have a detector and recorder which

gives the response.

Q: Did you test each of the samples on the ion

chromatograph to determine whether nitrate was present?

A: Yes, I did.

Q: And what, if any, conclusion did you reach with that

test?

A: On three samples that I tested, all three contained

nitrate ions.

Q: Based on those two tests, is it your opinion that what

was in those three Coca-Colas, sir, was thallium nitrate?

A: That is correct.

Q: Was there any way in those tests for you to determine

whether that was Thallium I Nitrate or Thallium III Nitrate?

A: No, there was not.

Q: Just generally, why is that? Why can't you tell?

A: The nitrate, the Thallium I versus the Thallium III, you

have three nitrates versus one nitrate. They will both respond

the same to the test because they both contain nitrates. One will

contain more nitrate than the other. . . .

Q: In your testing of those three bottles, did you ever

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attempt any quantitative analysis about how much thallium was

in there, or did you just do the nitrate analysis?

A: I just did the nitrate analysis. I made no attempt to

quantitate it.

(T.T. 3556-3560)

The prosecution then questioned Martz regarding the tests

performed on Q206 and how he identified the substance as thallium I

nitrate.

Q: I want to show you next, sir, what has been marked

as State's Exhibit No. 215. Do you recognize what this is, sir?

A: Yes, I do.

Q: What is it?

A: It's a bottle that I received in the laboratory in July

1990.

Q: What, if any, analysis were you requested to do on

that bottle or the contents of that bottle at the FBI lab?

A: Inside the brown bottle is some white powder. I was

asked to identify the white powder. . . .

Q: Did you test the material in that bottle to make a

determination what it was?

A: Yes, I did.

Q: What type of test or analysis did you do in order to

identify the substance on that bottle?

A: I used two techniques. I used x-ray diffraction and

also infrared.

Q: Now, would you explain to the jury what x-ray

diffraction is, sir?

A: X-ray diffraction uses x-rays which you bombard a

sample with, and you change the angle of bombardment. And

depending on the crystalline structure of the sample, you will get

different x-rays diffracted from the sample, which will help you

identify that particular sample.

Q: In doing the x-ray diffraction test of the substance in

the bottle, were you able to determine what was in that bottle?

A: Yes, I was.

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Q: What was it?

A: The substance I identified was thallium I nitrate.

Q: How do you determine with that test, or what makes

you able to determine with that test that it is Thallium I Nitrate as

opposed to Thallium III Nitrate?

A: Thallium I and Thallium III Nitrate have different

crystalline structures, and the x-ray equipment is able to differentiate

those particular two compounds.

Q: Did you measure the amounts quantitatively of

substance found in that bottle?

A: No, I did not. But based on the testing that I did,

nothing else was identified.

(T.T. 3561-2)

At the February 1999 evidentiary hearing, Martz testified

exhaustively regarding the testing of QI, Q2, Q3 and Q206. His goal

was to identify the ion associated with thallium. The testimony of

Martz and other scientists established that Martz failed to label tests

correctly, and to properly document results. (T. 66, 89, 97, 100-1,

103-5, 106, 109-11, 119-20, 132, 134, 136, 142, 160-2, and 176). The

tests performed by FBI Crime Lab chemists and scientists on Q1, Q2,

and Q3 include Barium Chloride, Silver Nitrate, Diphenylamine (DP),

Ion Chromatography (IC), X-ray Diffraction (XRD), Scanning

Electron Microscopy (SEW), and Mass Spectrometry (MS). Martz

did not reveal the results of the last three tests to the jury, and he

misrepresented the results of the DP and IC tests. Martz also testified

falsely at trial concerning specific tests performed on Q3. Martz

testified that the only tests of value in identifying the ion were the DP

test and the IC test. No real attack has been made on the findings of

Q206, so the discussion of testing on that item is limited to its

relationship to Q1, Q2, and Q3. Martz did a series of presumptive

tests on Q1, Q2, and Q3: DP, Barium Chloride, and Silver Nitrate.

(T. 86-8) Presumptive tests can rule out the presence of certain

substances, but they do not establish proof of the presence of a

substance. A positive result on a presumptive test permits one to say

that the result is consistent with the presence of the substance. (T. 92)

Martz's notes indicated that the results for Q1, Q2, and Q3, and

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unadulterated Coca-Cola were the same. (T. 88) The fact that the

results were the same on the unadulterated Coke and the Q samples

suggests that those substances were not present. While testifying at

the hearing, he recalled that the results on the barium chloride tests

were negative for both unadulterated Coke and Q1, Q2, and Q3, and

that the silver nitrate test was positive for both the unadulterated Coke

and Q1, Q2, and Q3. (T. 91) Conversely, he told an OIG investigator

that he could not recall the results except that they were the same for

all. (T. 90)

Martz tested Q1, Q2, and Q3 for the presence of an oxidizing

ion with the DP test. (T. 731) The DP test consists of a chemical

reagent that produces a blue color signaling the presence of an

oxidizing ion. (T. 73, 92, 279) The DP test is a presumptive test like

the spot tests. (T. 73) Q1, Q2, and Q3 gave positive results on the

DP test. (T. at 93). Based on the spot tests and the DP test results,

Martz concluded that Q1, Q2, and Q3 were chemically the same. (T.

100) The DP test was negative in unadulterated Coca-Cola, an

indication that there were no nitrates present in unadulterated Coca-

Cola. (T. 146-8)

The ion chromatography (IC) test is another presumptive test

which detects the presence of ions. (T. 150) At the hearing Martz

explained that, like the DP test, a positive result for nitrates on the IC

test means that the retention time is "consistent with" the presence of

nitrates. (T. 150) It does not establish conclusively that nitrates are in

fact present. Positive results on both tests lead to a stronger

conclusion than either single test standing alone. (T. 151) The court

questioned him directly on his reasoning that the IC test and the DP

test establish the presence of nitrate. Martz explained that forensic

scientists customarily rely on a combination of tests to establish the

presence of a substance, (T. 152), and that only nitrate will give

positive results on both tests. (T. 155)

Martz discussed the testing he performed on Q3. (T. 100, 160)

During the trial, he told the jury that he had tested all three Q samples,

and that, in his opinion, all three contained nitrate ions. (T.T. 35589)

At the hearing, Martz admitted that he had not performed the IC test

on Q3, and that his conclusion that Q3 contained nitrate was not

supported by scientific data. (T. 176) He conceded that he had failed

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to test Q3, and that his failure was deliberate. (T. 100, 162) The court

notes that Martz's trial testimony regarding Q3 testing was not an

omission or an oversight.

Martz also tested samples of unadulterated Coke for the

presence of ions with the IC test. (T. 143) Two IC runs on

unadulterated Coca-Cola produced a peak with a retention time similar

to the retention time for nitrate. (T. 148-9) Martz explained that the

result was consistent with the presence of nitrate in unadulterated

Coca-Cola, but was not actually nitrate. (T. 145) He explained that a

peak consistent with nitrate on the IC test and a positive DP test would

establish the presence of nitrate ion in unadulterated Coke. However,

an attempt to confirm the presence of nitrate in unadulterated Coca-

Cola using the DP test produced no blue color. (T. 145) He admitted

that he did not know what was causing a peak in the unadulterated

Coke runs, but that he could not conclude that it was nitrate without

confirmation on the DP test. (T. 201-2) The jury never learned of the

unconfirmed nitrate result.

During the remaining tests, Martz examined only Q1. Results

from XRD, SEK and MS failed to confirm the presence of thallium

sulfate or thallium chloride. (T. 120-1, 131-2, 134-8) He defended his

methodology by postulating that Q1 is a representative sample of Q1,

Q2, and Q3; therefore, results for Q1 may be extrapolated for Q2 and

Q3. (T. 1 00, 162) At the hearing, he admitted that he erred in failing

to disclose exactly how he reached his conclusion, but he defended

his methodology. (T. 101)

Trepal claims that Martz misled the jury with trial testimony

which contradicted his dictation. In his dictation he concludes that the

results of IC and DP are consistent with thallium nitrate having been

added to Q1, Q2, and Q3. (T. 161) The dictation states in part,

"[t]he contents of Q1 through Q3, laboratory number 81205002, D-SW-

W-R-F-T-L-V-Y, were analyzed for an ion associated with

thallium. The nitrate ion was identified in Q1 through Q3. The Q1

through Q3 Cokes are consistent with thallium nitrate having been

added to them." (T. 161) At trial, the state elicited his opinion

regarding the results of the DP test. Martz responded, "[b]ased on

that test, I concluded that thallium nitrate was added to the Coca-

Cola." (T.T. 3557) When presented with his prior testimony, Martz

-19-

admitted that his statement at trial was inaccurate. (T. 97) Martz

pointed out that the error was in stating that the conclusion was based

on one test. (T. 97) He maintained that the difference between

something having been "added to" and something being "consistent

with" was a matter of opinion. (T. 172-5)

Martz tested samples over a month or so, but did not record

dates of specific tests. (T. 66) During the course of testing, he

received a photograph from the experts at the Coca-Cola Company

showing the results of their testing. (T. 65-6) The Coca-Cola

Company showed that both thallium I nitrate and thallium sulfate could

be added to unadulterated Coke without altering the appearance.

Also, of the two types of thallium nitrate, thallium III nitrate altered the

appearance of Coke while thallium I nitrate did not. (T. 69) Martz

never attempted to mix thallium I nitrate with unadulterated Coke, and

did not perform the DP and IC tests on this mixture to determine

whether or not a chemical reaction occurred in the mixture which

could have affected the test results. (T. 136)

Prior to trial, Martz had not attempted to quantitate the nitrate to

determine whether the thallium nitrate was thallium I nitrate or thallium

III nitrate. (T. 163) He explained that he did not believe he would be

able to quantitate the nitrate. (T. 164) Martz later testified that he

successfully quantitated the nitrate on his trip to Florida for the

evidentiary hearing. He stated that the equations show a 1:1

relationship between thallium and nitrate in Q1 indicating the presence

of thallium I nitrate. (T. 232)

Havekost examined Q206 and identified thallium nitrate. He

then asked Martz to determine whether the thallium nitrate was

thallium I nitrate or thallium III nitrate. Martz used X-ray Diffraction,

Infrared Spectrometry, and Solid Probe Mass Spectrometry to

identify nitrate, and he weighed the sample. (T. 181) In his opinion, it

was 90-99% pure Thallium I Nitrate. (T. 181)

According to Martz, in his 23 years with the FBI, thallium was

an uncommon substance in the lab and there was no established

protocol for handling it, unlike more common substances such as

cocaine, arsenic or methamphetamine. (T. 167-70) At the time of

trial, the state asked Martz if he could establish a link between the

thallium nitrate in the Coke and the thallium in the powder using the IC

-20-

and DP tests. At trial, he explained that the difference between

thallium I nitrate and thallium III nitrate is the amount of nitrate, and

that the tests indicate whether a substance is present in a solution

rather than the amount of the substance. Therefore, the tests could

not be used to distinguish between thallium I nitrate and thallium III

nitrate. (T. 3559) He testified at the hearing that he was unable to

make any connection between the two until he worked through the

quantitative analysis of the nitrate in Q1. (T. 170)

B. THOMAS JOURDAN

Special Agent Thomas Jourdan, Ph.D., Unit Chief in the FBI

Crime Lab Materials and Devices Unit, testified at the hearing

regarding his role in reviewing Martz's work in State v. Trepal. His

superiors at the FBI asked him to examine those portions of the case

pertaining to analysis of Q1, Q2, and Q3, and offer rebuttal to the OIG

Report. (T. 268) Later, the OIG interviewed Jourdan regarding his

review of Martz's work.

The job of a forensic examiner is to show a difference between

questioned specimens and known specimens. (T. 274) In his

discussion of test results, Jourdan focused attention on the spot tests

and the IC test which advanced the case by differentiating between

Q1, Q2, and Q3 and the unadulterated Coke. Jourdan said Martz

should have run blanks on the IC, and the spot tests to assure accurate

results. (T. 270) For the remaining tests, MS, SEM and XRD,

Jourdan opined that the absence of blanks didn't affect the strength of

Martz's conclusion because these tests did not advance the case. (T.

276-7)

Jourdan testified that Martz's notes lacked detail. (T. 267) He

observed that some test results were not dated, and the spot test

results did not indicate whether they were positive or negative. He

noted that Martz used the spot tests to differentiate between Q1, Q2,

and Q3 and the unadulterated Coke. Knowing that the results were the

same for all suggested that there was no difference between Q1, Q2,

and Q3 and the unadulterated Coke, and that neither sulfate nor

chloride was added. (T. 266) The FBI Lab standard at the time Martz

conducted his examination was that lab notes be sufficiently detailed

to remind the author what tests and procedures he had performed. (T.

266)

-21-

Jourdan would not have accepted Martz's dictation for the DP

and IC tests because it contained unfounded conclusions about the

contents of Q3. (T. 281) He pointed out that Martz had received Q3

with directions to identify the ion associated with thallium. Martz

performed spot tests on Q3 along with Q1 and Q2. The results

suggested there was no difference between Q3, and the other two Q

samples. Martz's notes show that Q3 produced a positive result on

the DP test. Jourdan concluded that, at most, Martz's notes support

the conclusion that Q3 contained thallium and some kind of oxidizing

agent. (T. 282) Nothing in the notes or the testing supports any more

definitive conclusions about Q3.

Although Martz's notes did not indicate the order in which he

performed the tests, Jourdan summarized them in the following logical

sequence. (T. 285-7) Jourdan explained that water-soluble thallium

salts exist in three forms: nitrate, sulfate, and chloride. Therefore, an

examiner would look for thallium nitrate, thallium sulfate and thallium

chloride. (T. 285) The barium chloride test result suggests that sulfate

ion was not added. (T. 286) Likewise, the silver nitrate test result

suggests that chloride was not added. (T. 286) Next, the positive DP

result in Q1, Q2, and Q3 with the negative in unadulterated Coke

suggests the presence of an oxidizer. The results, taken together,

suggest that of the three types, nitrate is the oxidizer present.

However, Jourdan stressed that these tests are presumptive and

additional proof is needed. (T. 286) Jourdan offered no criticism of

the IC testing procedure. Despite problems he cited in some of

Martz's procedures, testimony, and dictation, Jourdan concluded that

Martz's data was scientifically sound. Jourdan stated:

From my review of the four corners of this

document—and this document is the notes that I was

provided with by the Inspector General's Office that were

told to me to be Agent Martz's notes—looking at the four

corners of this document, I believe that he—I believe that

it can be shown, and I can demonstrate if you like, that to

a reasonable scientific certainty thallium nitrate was added

to Q1 and Q2; and I can really say nothing about Q3,

other than that it appears that there is an oxidizing agent

-22-

involved.

(T. 295, 312)

Jourdan in fact used IC charts to determine the amount of

nitrate in Q1 and Q2. (T. 299) He discussed how the nitrate could be

quantitated and provided equations based on Martz's IC charts, which

he believed, demonstrate to a reasonable scientific certainty that the

type of thallium in Q1 and Q2 is thallium I nitrate. (T. 297-304) After

having quantitated the results, Jourdan concluded that beyond a

reasonable scientific doubt, thallium I nitrate was added to Q1 and Q2.

(T. 321)

Jourdan discussed the differences between the idea that

something has been "identified as" a substance and that something is

"consistent with" the presence of a substance. (T. 291) When

something is identified as a given substance, there is a high level of

confidence so that other possibilities are ruled out. Conversely,

"consistent with" means that no contradictory information has been

developed; it is a less confident response. (T. 291) In Jourdan's

opinion, Martz's notes support a stronger conclusion that "beyond a

reasonable scientific doubt, thallium nitrate" was added to Q1 and Q2.

(T. 319)

C. STEVEN G. BURMEISTER

Steven G. Burmeister, Unit Chief in the Chemistry Unit of the

FBI Lab, testified regarding his review of Martz's work in the Trepal

case and the OIG report. Burmeister criticized Martz for failing to do

standard runs on the IC machine to establish a baseline for certain

ions. He noted that the list of ions he would test for was based on his

experience in explosives analysis. (T. 342) Burmeister's personal

standard for evaluating the IC work was higher than the standard in the

scientific community. (T. 344) Having reviewed Martz's report check

and the OIG report, Burmeister concluded that to a reasonable degree

of scientific certainty, thallium I nitrate was added to Q1 and Q2. (T.

369, 371) He noted that his opinion would be slightly less confident

without Jourdan's quantitative analysis. (T. 372)

D. MARLAND D. DULANEY

Marland D. Dulaney, Ph.D., Forensic Toxicologist, was

extremely critical of Martz's methodology and the analyses provided

-23-

by Jourdan and Burmeister. In a discussion of the IC tests, he opined

that no one could have excluded chloride and sulfate ions without

comparing the test runs to standard runs. (T. 387-8) He pointed out

that when working with two unknown substances like Coke, and Q1,

Q2, and Q3, the scope of testing must be broader. He stated that

Martz should have run standards of nitrate in unadulterated Coke

rather than nitrate in water. (T. 411-2) He observed that one cannot

extrapolate the results of a nitrate and water solution on an IC run to

determine what happens when nitrate is mixed with unadulterated

Coke. (T. 394)

Dulaney challenged some assumptions underlying the FBI

testing and claimed that Martz's methodology was so flawed that his

results could not be trusted. (T. 415) First he questioned the

accuracy of the quantitative analysis of the nitrate ion identified in Q1.

(T. 400-3) He observed that the top portion of some IC graphs were

flat. He suggested the concentration of the testing solution was so

high that it produced readings which extended beyond the page.

Dulaney pointed out that this was a simple mechanical problem that

Martz should have corrected. According to Dulaney, it was especially

important to have made the correction because the quantitative

calculations were based on the height of the peaks. After pointing out

the graphing problem, he suggested that any calculations derived

therefrom were flawed. Next, he questioned Jourdan's assertion that

only three thallium salts are water-soluble. (T. 409) He pointed out

that Reese, the Coca-Cola Company examiner, mixed Coke with

thallium malonate, and thallium formate. While both substances

foamed, he stated that they did not permanently discolor the solution.

(T. 409) He suggested that other water-soluble thallium compounds

should have been considered. (T. 409)

E. JAMES K. CADIGAN

James K. Cadigan was a Special Agent in the Firearms and Tool

Marks Unit of the FBI Lab. He discussed his report on the tool marks

left on the bottle caps from Q1, Q2, and Q3, and his trial testimony.

The OIG report does not address Cadigan's work in this case. In his

motion, Trepal claims that Cadigan testified falsely concerning the

quality of evidence obtained from the bottle caps. He claims that

Cadigan's findings, that certain tool marks were of limited value,

-24-

contradict his trial testimony. Cadigan explained that it is his practice

to assign a value to each tool mark upon his initial examination of an

object as a means of prioritizing the steps in his examination. (T. 484)

F. FREDERICK W. WHITEHURST

Frederick W. Whitehurst, Ph.D., J.D., former FBI Special

Agent and current Executive Director of the Forensic Justice Project in

Washington, D.C., testified concerning his role in the OIG

investigation and his observations of Martz's work on the Trepal case.

Whitehurst was an examiner in the Material and Analysis Unit at the

time of the hearing. He is the whistle blower who initiated the OIG

investigation into FBI Lab practices. Whitehurst testified that Martz's

approach to the analysis was below the scientific community standard,

and his work lacked peer reviews. He is of the opinion that

performing an IC test without running standards does not meet

scientific standards. (T. 566) He explained that Martz's conclusion is

dependent upon unknown information, such as the impact of

unadulterated Coke on an IC run. (T. 567-8) Because the content of

Coke is unknown, one cannot not assume what would happen if nitrate

were added to it. (T. 568) He also observed that adding thallium

standard to water is not a valid scientific method. (T. 596) He

concluded that Martz could have appropriately told the jury, "[w]e

have results that are consistent with and not proof of the presence of

thallium nitrate and thallium nitrite." (T.607-8) Beyond that, there is

not enough data to distinguish between the two substances. (T. 613)

He noted that the quantitative analysis is incorrect because of the

problem described by Dr. Dulaney. (T. 572) As for the results of

Q206, one may conclude that it is thallium, and consistent with the

presence of thallium nitrate. (T. 609)

G. DONALD G. HAVEKOST

Donald G. Havekost, a Forensic Consultant and retired FBI

Special Agent, testified regarding his initial testing of Q206. Havekost

observed the color and texture of the powder, weighed it, performed

SEM, and identified the counter ion by DP and got a positive reaction.

(T. 616) The DP test confirmed that the counter ion was nitrate.

H. JONATHAN STIDHAM

Jonathan Stidham was a member of Trepal's defense team. He

testified regarding the defense strategy and how that strategy would

-25-

have changed had they received a copy of Martz's notes and charts.

Testimony at trial established that Trepal was an unemployed

chemist, who at one time, worked in a methamphetamine lab and had

purchased P2P. (T. 645) P2P is a compound used to make

methamphetamine, and thallium is a byproduct of the production of

methamphetamine. Stidham believed that Q206 was the most

important piece of evidence because the prosecution used it to link

Trepal to the crime. (T. 638)

The defense team hired an expert at Georgia Institute of

Technology in Atlanta, Georgia, to test samples from Q1, Q2, Q3, and

Q206. Stidham conceded that the HRS Lab in Jacksonville found

thallium in residue taken from the empty Coke bottles, and that the

Centers for Disease Control in Atlanta found thallium in tissue samples

taken from the victims. Similarly, he testified, their expert from

Georgia Tech found thallium I nitrate in Q206 and thallium nitrate in

Q1, Q2, and Q3. (T. 649-50) He also conceded that the defense team

did not have any scientific evidence to support a theory that thallium

was not the substance that poisoned the victims, (T. 650), or that

thallium had not been added to the Cokes. (T. 642) The defense team

never called their expert to testify at trial. According to Stidham, the

defense wanted to show that the thallium in Q1, Q2, and Q3 came

from a different source than the thallium in Q206. (T. 657)

The defense focused on trying to show that the thallium in Q1,

Q2, and Q3 did not come from Q206. (T. 642) Stidham theorized

that if the defense team had known of the testing procedures, they

might have avoided disclosing Trepal's prior felony to the jury. (T.

646) Also, if the FBI had found something that was not a by-product

of the manufacture of methamphetamine, that may have also aided the

defense in keeping the prior felony out of evidence. (T. 647) He

believed that the defense would have been able to cast doubt on the

reliability of the testing if they had known the contents of the notes and

charts at trial. (T. 642) They would have made a challenge under Frye

that the information was unreliable and inadmissible. (T. 644) Also,

the defense would have argued that the ruling in Brady trumps the

discovery rule regarding notes. (T. 661)

I. DABNEY CONNER

Dabney Conner was also a member of Trepal's defense team.

-26-

He has a chemistry background and testified at the hearing concerning

the defense trial strategy, problems he observed in the FBI Lab testing

procedures, and how the defense strategy would have changed had

they known of the irregularities in the testing procedure.

The issue at trial was whether the thallium in Q1, Q2, and Q3

was the same type of thallium as that found in Q206. (T. 670) He

believed that the defense and the jury were laboring under the

misconception that the FBI Lab was infallible at the job of analyzing

things. (T. 6723) He also believed that if the defense could have

shown that the thallium in Q1, Q2, and Q3 had a different atomic

weight than the thallium in Q206, they could have established that

Q206 was not the source of the thallium in Q1, Q2, and Q3. (T. 674)

Georgia Tech ran a mass spectrometry test the results of which

showed no difference in the atomic weight of the thallium in Q1, Q2,

and Q3, and Q206. (T. 674)

Conner testified that he would have used the OIG Report to

possibly exclude Martz's testimony and the testimony of other

witnesses by means of impeachment or pretrial challenge. (T. 667)

Conner observed problems with the testing including Martz's "sloppy

lab work," the failure to run proper baseline standards, and the use of

certain machines. (T. 667-8) Conner also noted that sloppy

procedure calls into question the validity of the results. (T. 668)

Although their expert at Georgia Tech provided results which

revealed that the substance in Q1, Q2, Q3, and Q206 was thallium

nitrate, (T. 677), Conner questioned the testing method employed by

his expert. (T. 679) From his chemistry background, Conner

understood that charts are generated by some of the machines used at

the FBI lab, but did not request them. (T. 683) He deposed Martz at

the FBI office in Washington, D.C., and Martz complied with each

request to produce documents. (T. 684-5) In light of the OIG report,

Conner stated that his strategy would still be to try to show that Trepal

was not the individual responsible for tainting the Cokes. (T. 693)

(Footnotes omitted.) After summarizing the testimony of the witnesses, the circuit

court evaluated the conflicting testimony and made findings, as explained below.

-27-

C. Findings

The circuit court made the following findings concerning the relative

credibility of the witnesses who testified at the second evidentiary hearing:

The court has struggled to reconcile testimony of the various

experts. It cannot be done. The court will make findings on the

credibility of the important witnesses rather than list the variances in

each witness's testimony. The court has utilized all the tools available

to the trier of fact as set out in the standard credibility instruction, and

for reasons which follow, the court finds that Martz is not credible,

portions of Jourdan's and Burmeister's testimony are not credible, and

Whitehurst and Dulaney are highly credible. The court finds that

Cadigan did not testify falsely at trial. His explanation of certain

findings contained in his notes were plausible and otherwise consistent

with his report. The court will also make findings regarding defense

testing of Q1-Q3 and Q206.

The FBI placed Martz on temporary assignment for several

years as a result of the investigations into his work at the FBI lab. It is

understandable that he would have an interest in bolstering his trial

opinion and regaining his job status. On some points, Martz was

candid. He admitted testifying falsely at trial. On others points, his

testimony at the evidentiary hearing was evasive, and misleading.

Martz testified falsely at trial when he stated that a positive result on

the DP test will yield a blue color indicating the presence of nitrate. In

fact, the blue color indicates the presence of an oxidizer which could,

among other things, be nitrate. Martz misled the jury when he testified

that nitrate was not present in unadulterated Coke. In fact, IC testing

revealed a substance which could have been nitrate. Although

according to Martz, a subsequent DP test did not turn the Coke blue

to confirm the presence of an oxidizer. This information would have

been useful to the jury. Testimony at the evidentiary hearing revealed

that the IC tests were not properly run. Although the IC test is not

conclusive, when properly run, it is strong evidence that a substance is

present.

Martz testified falsely at trial that he had run Q3 on the IC.

-28-

Withholding information can constitute a falsity. See Giglio v. United

States, 405 U.S. 150, 154 (1972). That is the case here. Martz failed

to reveal that he had done additional testing on Q1, Q2, and Q3. The

court finds this particularly important because the defense could have

used this information to suggest that Martz was not satisfied with the

initial results and sought additional data. His notes indicated a finding

"consistent with" not "added to," and the fact that he performed

additional tests, by inference, supports the conclusion in his notes.

Martz never explained why he wrote one thing in his notes and testified

to something else. Any attempt to say they mean the same thing does

not hold water. Jourdan and Burmeister accurately criticized the

testing procedure as sloppy. Such criticism casts doubt on Martz's

conclusions.

The court has found that Martz would have been justified in

testifying that test results were consistent with the presence of nitrate in

Q1 and Q2. As to Q3, he could have testified that it contained an

oxidizing ion. The court recognizes the State's argument that because

Martz gave his opinion at trial, his opinion can be incorrect but not

false. In most instances that would be an accurate statement.

However when Martz's testimony is taken in its entirety, it supports

two possible conclusions: (1) Martz is an incompetent examiner who

did not knowingly testify falsely; or (2) Martz is quite skilled and

knowingly colored his testimony. There is no doubt that the data

available at the time of trial did not support the opinion Martz offered

and that he knew it.

The FBI selected Thomas Jourdan and Steve Burmeister to

represent the agency at the OIG hearing. The court believes their roles

in the OIG investigation colored their testimony at the evidentiary

hearing. In their criticism of Martz's testing and reporting methods,

they noted specifically that some results were not labeled or

mislabeled, lab notes contained insufficient detail, and certain tests

were improperly run. Despite their criticism, they concluded that

Martz's work met standards of the scientific community. Each then

stated that the data supports Martz's trial testimony that thallium nitrate

was added. However, it is important to note that their opinions are

based on the portion of the FBI lab report prepared by Martz as well

as the subsequent quantitative analysis. The court finds their

-29-

discussion of facts and test procedure to be credible, but rejects their

conclusion that the test data supports Martz's trial testimony.

It is also important to understand that Martz and Jourdan

performed the quantitative analysis just prior to the evidentiary hearing.

While the analysis itself was properly calculated, the court is

concerned that the result may be unreliable because the data, taken

from the IC charts, was likely flawed. Testimony at the hearing has

indicated that the IC charts were flawed because of the graphing

problem described earlier, the failure to run blanks, and the failure to

run a standard consisting of nitrate and unadulterated Coke. Martz

relied on the IC charts; Jourdan used data taken from Martz's notes.

Burmeister's opinion of Martz's work was also shaped by the

quantitative analysis. While there is a possibility that the substance is

in fact thallium I nitrate, the court declines to so find. The court

rejects Jourdan's and Burmeister's conclusion that the data supports

the conclusion to which Martz testified at trial.

Whitehurst, the whistle blower and former FBI lab examiner,

had an interest in seeing that his allegations against Martz and the lab

were viewed as credible and meritorious. Despite his interest, the

court finds him to be credible and accepts his opinion that Martz

could have appropriately stated that the results were consistent with

the presence of, although not proof of, nitrate.

Dulaney, the defense expert who testified regarding the scientific

standard and testing procedures, is a highly qualified academician

subject to attack based on a "real world" versus "purely academic

world" analysis. Dulaney was nonetheless highly credible in his

discussion of scientific testing procedures. Because testing

procedures are universal regardless of the circumstances calling for

testing, this court accepts his opinion and finds that the measure of

scientific proof required by the scientific community was not satisfied

by Martz's testing sufficiently to permit Martz to conclude that thallium

nitrate was added to Q1 and Q2.

It is important to note that the defense expert from Georgia

Tech tested samples of the materials. He was not listed as a witness

by the defense at trial. The prosecution, after prevailing on the issue

of whether they were entitled to call him or use his report, did neither.

The court does not know the objectives of his testing, or what tests he

-30-

performed. We know, only through the hearsay testimony of defense

counsel, that he found thallium I nitrate in Q206 and thallium nitrate in

Q1-Q3.

That defense counsel accepted these results and settled on an

alternative approach to attack the prosecution argument concerns the

court. Part of the prosecution argument is that even if Martz used

improper testing protocol and lied, he, in fact, came to a conclusion

which can be proven correct. Assuming the Georgia Tech chemist

would have agreed with the testimony of the other chemists in this

case, his presence at trial would have had an impact. Had he been

present for Martz's testimony, it is quite likely that Martz could have

been seriously impeached.

After the circuit court made the above findings, the court proceeded to summarize

and address Trepal's claims.

D. Circuit Court's Analysis

To facilitate its analysis of Trepal's twenty-one claims, the circuit court

grouped the claims under four legal theories and then addressed each theory:

Martz's conduct at trial was outrageous and shocking, and the

apparent lack of supervision which allowed this misconduct is

troubling. Nevertheless, the court must consider the legal effect of his

actions in determining whether Trepal is entitled to relief.

Trepal makes numerous claims in his motion; few of which are

clearly delineated. The court has identified, numbered and grouped

twenty-one claims into categories for ease of analysis. The categories

are: newly discovered evidence; ineffective assistance of counsel;

Brady and Giglio claims; and cumulative error. For each claim, it is

not enough for a defendant to establish an alleged error, the defendant

must also show that he was prejudiced by the alleged error. In

considering the claims, the court must look to the effect the evidence

would have on the jury verdict, both in the guilt phase and the penalty

phase. Although the legal standards differ among most of the

-31-

doctrines, the question of the impact on the jury is common to all. . . .

. . . .

A. NEWLY DISCOVERED EVIDENCE

Trepal argues that the OIG report and other Justice Department

documents constitute newly discovered evidence and show that the

prosecution presented inadmissible scientific evidence. Newly

discovered evidence is information that was unknown to the trial court,

to the party, and to counsel at the time of trial, was undiscoverable by

due diligence, and would probably produce an acquittal at retrial. See

So.2d 1250, 1252 (Fla. 1997). To qualify as new evidence, it must be

report would be inadmissible hearsay. See Norton v. State, 709 So.

2d 87, 95 (Fla. 1997); Lubbock Feed Lots, Inc. v. Iowa Beef

not exist at the time of trial. Other documents produced in the Justice

Department investigation are the subject of a protective order and are

not part of the court file. They cannot be considered as evidence.

charts, graphs, and lab notes which are the basis of the investigative

954, 960 (Fla. 1996). Realistically, all these documents are ones that

were not in existence at the time of the trial, or were not discoverable,

but are actually the indication of false testimony at trial. The core of

Trepal's case is that the prosecution relied on false and misleading

evidence at trial. This is not newly discovered evidence in the normal

sense. It is better addressed as a Giglio claim and that aspect will be

discussed later. In addition, even if this material is considered newly

discovered evidence, the court cannot find that this material would

probably produce an acquittal or a life sentence at trial.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Trepal raises a claim of ineffective assistance of counsel for trial

counsel's failure to discover evidence of laboratory misconduct. A

successful claim will show deficient performance and prejudice to the

defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Robinson v. State, WL 1473147 (Fla. 2000).

The first question is whether their performance was deficient.

-32-

What did counsel fail to do? They could not have secured lab notes

since the notes were not subject to discovery. They could have had a

chemist present during trial to advise them on appropriate testing

procedures and cross examination, or they could have accomplished

this during discovery. They could have educated themselves as to the

proper testing procedures in advance of trial. Had the defense taken

any of these measures, Martz would have been seriously impeached.

The defense relied on the FBI lab report which stated that the test

results showed thallium consistent with the presence of nitrate. (T.

672-3) In hindsight, they were not justified in doing so. When Martz

testified differently at trial, defense counsel failed to attack his changed

conclusion. The court is compelled to find their performance

deficient. The court does this with great reluctance because it can

foresee a flood of requests to have a defense chemist at trial in routine

lab testimony.

Did the deficiency prejudice the defense? This, in turn, depends

on whether "counsel's ineffectiveness was such as to 'undermine

confidence in the outcome.'" Robinson v. State, WL 1473147 (Fla.

2000) (Anstead, J., special concurrence). The court finds that . . . the

outcome would be the same at the guilt phase.

Taking the narrow view of the penalty phase, we look to what

the jury was instructed. Under the standard jury instructions, the jury

was told to consider the appropriate aggravating and mitigating factors

as set out in the standard jury instructions. The instructions do not

include residual doubt. The court finds that there is no reasonable

probability that the [sentence] would have been different . . . .

. . . .

C. BRADY AND GIGLIO CLAIMS

Trepal alleges a discovery violation for the prosecution's failure

to make full disclosure of testing procedures contained in lab notes in

violation of Brady. The holding in Brady states that suppression of

exculpatory evidence after defense request violates due process when

evidence is material to guilt or punishment. See Brady v. Maryland,

373 U.S. 83, 87 (1963). Brady has come to stand for the proposition

that the prosecution has a duty to disclose exculpatory evidence

whether the defense makes a specific request, a general request, or no

request. See Kyles v. Whitley, 514 U.S. 419, 433 (1995); Bagley v.

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United States, 473 U.S. 667, 678 (1983); United States v. Anderson,

574 F.2d 1347, 1354 (5th Cir. Ga. 1978). The notes were not

exculpatory prior to trial. They could only be regarded as exculpatory

after Martz testified. There was no Brady violation of the type dealt

with in this section.

He also claims a violation of Giglio for use of false testimony at

trial. Giglio v. United States, 405 U.S. 150 (1972). The problems with

test procedures are so wrapped up with the false testimony issues that

they must be dealt with here. Claims 16-21 raise the issue of false

testimony presented at trial under Giglio. Giglio holds that a

conviction based on false or perjured testimony, which the

prosecution knew or should have known was false, violates due

process when such information is material. The materiality prong is

2000). False information is material if "there is a reasonable likelihood

In examining the effect on the jury, what must the court

consider? The question implies a comparison. Trepal would have the

court compare actual testimony with impeachment testimony which

would have revealed all these problems at trial. Realistically, if all this

had been known in advance of trial, Q1, Q2, and Q3 would have been

retested. On the other hand, the prosecution would have us look to

what the substance in Q1, Q2, and Q3 really is, including reliance on

the quantitative analysis. The court has previously rejected these

positions and indicated that for this analysis the actual testimony

should be compared to what Martz could have truthfully testified to at

trial.

As to the guilt phase, the court finds . . . that there is no

reasonable likelihood that the verdict would have been different. This

case was based almost entirely on circumstantial evidence. The testing

results of the Coke samples and Q206 were the only direct evidence of

Trepal's guilt. Even so, given the test results that Martz could have

rightfully testified about and considering all the other evidence in the

case, the court finds no reasonable likelihood that the guilt phase

results would have been different. Although this is a circumstantial

evidence case, the evidence was strong.

Turning to the penalty phase . . . . Under the standard jury

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instructions, the jury was told to consider the appropriate aggravating

and mitigating factors as set out in the standard jury instructions. The

instructions do not include residual doubt. The court finds that there

is no reasonable likelihood that the verdict would have been different.

. . . .

D. CUMULATIVE ERROR

The cumulative error doctrine applies when there are other

claims supported by competent evidence, but they do not meet the

criteria for securing relief. In that instance, the court must consider the

cumulative effect of the evidence. If under the unique circumstances

of the case, confidence in the outcome has been undermined, and a

reasonable probability exists that the outcome would be different,

The cumulative effect doctrine is only relevant if the other

claims have been rejected. They have under the narrow view. Under

the narrow view, the court finds that cumulative effect claim lacks

merit because the cumulative effect of errors, if any, is not sufficient to

undermine confidence in the outcome. See Rose v. State, WL

1508576 (Fla. 2000). . . . [T]he court cannot find that confidence in

the outcome has been undermined or the reasonable probability of a

different outcome.

(Footnotes omitted and emphasis added.)

E. This Court's Analysis

The gist of the circuit court's analysis of subclaim (a) is that, regardless of

the legal theory under which Trepal's assertion of "false and misleading scientific

testimony" is analyzed, "the question of the impact on the jury is common to all."

After evaluating the conflicting testimony of the witnesses, the court concluded that

12. See generally Strickland v. Washington, 466 U.S. 668, 697 (1984) ("If it

is easier to dispose of a . . . claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.").

-35-

As noted above, the issue posed in subclaim (a) is whether Martz's

improprieties impermissibly tainted the trial. This issue is a mixed question of law

and fact, and this Court in State v. Glatzmayer, 789 So. 2d 297 (Fla. 2001),

articulated the proper standard of review for an appellate court to apply when

reviewing a trial court's ruling on a mixed question of law and fact of this sort:

If the ruling consists of a mixed question of law and fact addressing

certain constitutional issues (e.g., probable cause, reasonable

suspicion, the "in custody" requirement under Miranda, ineffectiveness

of counsel), the ultimate ruling must be subjected to de novo review

but the court's factual findings must be sustained if supported by

competent substantial evidence. See, e.g., Stephens v. State, 748 So.

2d 1028 (Fla. 1999).

Glatzmayer, 789 So. 2d at 301-02 n.7.

In the present case, the circuit court found that the following statements

made at trial by Martz were improper for the following reasons:

—Martz stated: "And when you pour that [i.e., diphenylamine

or DP] into a solution which contains a nitrate you get a blue color."

(The circuit court, however, found as follows: when you pour DP into

a solution that contains an oxidizing ion—which may or may not be a

nitrate—you get a blue color.)

—Martz stated: "Based on that test [i.e., the DP test] I

concluded that thallium nitrate was added to the Coca-Cola." (The

-36-

circuit court, however, found as follows: all that could be concluded

based on the DP test—in conjunction with the other tests—was that

the test results were consistent with the presence of thallium nitrate.)

—Martz stated: "No nitrates were present in the unadulterated

Coca-Cola." (The circuit court, however, found as follows: ion

chromatography or IC testing showed the presence of a substance that

could have been a nitrate in the unadulterated Coke.)

—"In this particular case, when I tested the Coca-Cola [via IC]

the results were positive for the nitrate ion." (The circuit court,

however, found as follows: the IC test can show only the presence of

an oxidizing ion—which may or may not be a nitrate.)

—Martz was asked: "Did you test each of the samples on the

ion chromatograph to determine whether nitrate was present?" He

responded: "Yes, I did." (The circuit court, however, found as

follows: Martz did not test each sample. He did not test the third

sample, i.e., Q3, on the ion chromatograph.)

—Martz stated: "On three samples that I tested, all three

contained nitrate ions." (The circuit court, however, found as follows:

on two samples that Martz tested, all that he appropriately could have

attested to was that the tests were consistent with the presence of a

nitrate; and that on the third sample, the tests were consistent with the

presence of an oxidizing ion—which may or may not have been a

nitrate.)

—Martz was asked: "Based on those two tests [i.e., DP and

IC], is it your opinion that what was in those three Coca-Colas, sir,

was thallium nitrate?" He responded: "That is correct." (The circuit

court, however, found—as noted above—that all that Martz

appropriately could have attested to was that the tests were consistent

with the presence of thallium nitrate.)

Regardless of the above improprieties in the testimony of Martz (and

regardless of the improprieties in his testing practices and omissions in his

testimony), the following conclusions nevertheless can properly be drawn from the

present record:

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—Peggy Carr died from ingesting thallium (of an undetermined

type).

—Of the various forms of thallium, only thallium sulfate and

thallium nitrate (sub-group I) dissolve in Coca-Cola without changing

the appearance of the Coke or foaming out of the bottle.

—The brown bottle found in Trepal's garage contained

(a) thallium, and (b) an oxidizing ion consistent with the presence of a

nitrate.

—Five empty Coca-Cola bottles found in the Carr household

contained thallium (of an undetermined type).

—Tests on two unopened bottles of Coca-Cola found in the

Carr household (a) showed the presence of thallium, and (b) yielded

results that were consistent with the presence of a nitrate.

—Tests on a third unopened bottle of Coca-Cola found in the

Carr household (a) showed the presence of thallium, and (b) yielded

results that were consistent with the presence of an oxidizing ion

(which may or may not have been a nitrate).

When the above conclusions are combined with the other circumstantial

evidence of guilt in this case (summarized above in this Court's opinion on direct

appeal), we agree that the prejudice suffered by Trepal as a result of Martz's

improprieties was insufficient to warrant a new trial. Applying the Glatzmayer

standard of review, set forth above, to the circuit court's ruling on this subclaim, we

conclude that the court's factual findings are supported by competent, substantial

evidence in the record, and the court properly concluded—based on those

findings—that the prejudice suffered by Trepal was insufficient to warrant a new

trial. We find no error.

IV. SUBCLAIM (b): INEFFECTIVENESS OF TRIAL COUNSEL

13. Trepal also alleges that lack of a toxicology expert rendered defense

counsel deficient in failing to investigate evidence that Travis Carr's thallium levels

increased during his hospital stay.

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In his second subclaim, Trepal asserts that trial counsel was ineffective in

failing to engage the services of a toxicology expert to challenge the State's

evidence. Trepal asserts that lack of a toxicology expert rendered defense counsel

deficient in the following ways: (1) in failing to investigate the presence of arsenic in

the bodies of Peggy Carr, Duane Dubberly, and Travis Carr; and (2) in failing to

investigate evidence showing that thallium was found under the sink in an apartment

counsel's deficiency. We disagree.

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984), set forth the following two-pronged standard of proof for a trial court to

apply when evaluating a claim of ineffectiveness of trial counsel:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the "counsel" guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary process

that renders the result unreliable.

14. See Strickland, 466 U.S. at 698.

-39-

Strickland, 466 U.S. at 687. The Court in Strickland explained at length both the

first and second prongs of the above test and noted that both prongs are mixed

This Court in Stephens v. State, 748 So. 2d 1028 (Fla. 1999), set forth the

abiding standard of review for an appellate court to apply when reviewing a trial

court's ruling on an ineffectiveness claim. We later summarized that standard as

follows:

The standard of review for a trial court's ruling on an ineffectiveness

claim also is two-pronged: The appellate court must defer to the trial

court's findings on factual issues but must review the court's ultimate

conclusions on the [performance] and prejudice prongs de novo.

Bruno v. State, 807 So. 2d 55, 61-62 (Fla. 2001).

As for Trepal's first point under this subclaim, i.e., that trial counsel was

ineffective in failing to challenge the State's case concerning the increased levels of

arsenic found in the victim's bodies, the circuit court heard testimony relating to this

point at the first evidentiary hearing and concluded as follows:

The court allowed the defendant to inquire as to trial counsel's

alleged failure to address the elevated amounts of arsenic in the urine

of Peggy Carr, Duane Dubberly and Travis Carr. (See, rule 3.850

motion, p. 100-2.) The court believes that this issue was one of the

most important claims raised in the rule 3.850 motion.

The evidence available at the time of trial was that Peggy Carr,

-40-

Duane Dubberly and Travis Carr all had been exposed to arsenic. Dr.

Marland Dulaney testified as an expert in toxicology for the defendant

at the evidentiary hearing. Dr. Dulaney's opinion was that there were

two separate poisoning attempts. The first was a chronic (small doses

over time) exposure to arsenic. The second was an acute (high dose

at one time) exposure to thallium. The doctor agreed, however, that

the cause of Peggy Carr's death was the exposure to thallium.

An important piece of information that Dr. Dulaney relied upon

in formulating his opinion was a test performed on Peggy Carr on

October 31, 1988. The results of that test revealed that Mrs. Carr had

616 micrograms of arsenic in her urine. A normal level of arsenic is 25

micrograms. However, there is evidence that the 616 microgram result

may have been unreliable. Dr. Robert VanHook, who treated Mrs.

Carr at the Winter Haven hospital, testified in a deposition given on

September 5, 1990, that "one test came back suggesting that arsenic

level was elevated but apparently this was never confirmed." (R.

7956). Based on the initial lab report of 616 micrograms, Dr.

VanHook began BAL (British Anti-Lewisite) therapy to combat the

perceived high arsenic levels. Dr. VanHook testified that "[h]owever,

the following day we got a call from the state lab indicating that their

tests for arsenic were conflicting. So as I remember no further therapy

specific for arsenic was done." (R. 7958). The doctor further

testified that Mrs. Carr's hospital progress reports stated that the

hospital received a "[c]all from state last night indicates conflicting

results on the arsenic tests. BAL stopped." (R. 7960). In response

to a question about why the BAL treatment was discontinued, Dr.

VanHook said "[b]ecause of information from the state lab that they

had conflicting reports regarding the analysis [of arsenic in the urine

sample]." (R. 7967). During the state's examination, the following

discussion occurred:

STATE ATTORNEY: Are you or do you have an

opinion with regard to the elevated level being at 625 [sic]

and apparently the lab at CDC not finding any arsenic in

this person's body? What I'm trying to get at is would

you expect to see arsenic in a decreasing level if it really

was at 625 [sic] or could it have been at 625 [sic] and be

-41-

zero the next day and that be a rational thing?

DR. VANHOOK: I would not expect that but I'm

not an arsenic expert.

(R. 7974).

Dr. T. Richard Hostler, Peggy Carr's primary physician at

Winter Haven Hospital, testified in a deposition on August 24, 1990,

that he remembered "one report in which arsenic was found in trace

amounts." (R. 7392). Dr. Hostler was referring to a report which

stated that on November 15, 1988, Peggy Carr had 36 micrograms in

her urine over a 24 hour period. Dr. Hostler stated that because the

normal level was 25 micrograms in a 24 hour specimen he "personally

[did] not consider 36 micrograms to be a clinically relevant or

significant elevation therefrom." (R. 7394).

Dr. Michael Wilder, who at the time of the poisoning was the

State Epidemiologist, testified in a deposition given on August 7, 1990,

that "there was arsenic found in one of the urine samples. There was,

when it was first reported from the laboratory in California, there was

some uncertainty as to the level of importance that that [level of]

arsenic might have. In other words, after some discussion with the

folks at CDC it was discerned that the level of arsenic was not

incompatible with the [level] normal[ly found] from eating oysters, and

so forth." (R. 6521-22) (additions in brackets added from the errata

sheet submitted by Dr. Michael Wilder on September 5, 1990.)

Another important piece of evidence Dr. Dulaney relied upon

was the pattern of Peggy Carr's symptoms. Evidence revealed that

Peggy Carr went to Bartow Hospital feeling sick on October 24, 1988.

She was discharged on October 27, 1998 [sic], when she felt better.

On October 30, 1988, Peggy was feeling very sick and Pye Carr

brought her to Winter Haven Hospital. Dr. Dulaney's theory is that

Peggy Carr was being poisoned with a low dose of arsenic when she

became sick on October 27. Once in the hospital, the source of

arsenic was removed and her condition improved. She then returned

home, and was exposed to arsenic and thallium. Her condition

worsened and she was admitted to the hospital three days later. This

theory comports with Dr. Dulaney's opinion that there were two

separate poisoning attempts.

-42-

However, other doctors have different opinions on why Peggy

Carr became sick, improved and became sick again. A section of a

CDC article titled "A Cluster of Acute Thallium Poisoning in Florida,

1988," stated that:

Patient A [Peggy Carr] reportedly drank half of a bottle

on October 22, put the bottle in the refrigerator and drank

the remaining soft drink the next day. On October 23,

patient B [Travis Carr] drank at least 4 ounces from

another bottle while Patient A's husband had a ‘Bourbon'

mixed with 1/4 of a glass from the same bottle; on that

occasion the 2-year old granddaughter drank ‘a small

amount' from the same bottle. When Patient A came

back home from her first hospitalization 5 days after her

first onset she shared another bottle of soft drink with her

son (patient C) [Duane Dubberly], who consumed about

4 ounces of it. The time interval between soft drink

consumption and occurrence of first neurologic

symptoms ranged from 1 to 3 days for the 3 symptomatic

cases, the shortest being for patient A who reportedly

drank the largest amount of soft drink.

(R. 6447).

Dr. Karl Klontz, the Medical Executive Director of the

Department of Health and Rehabilitative Services Epidemiology

Program of the Disease Control Office, authored a memorandum on

January 3, 1989, titled "A Thallium Poisoning Cluster In A Single

Family, Polk County, Florida. October-November 1988." The

memorandum stated that:

The clinical history of Mrs. P.C. [Peggy Carr], with an

acute phase, followed by apparent improvement, and a

secondary worsening phase suggest 2 successive

exposures consistent with her history of Coke

consumption. . . . The severity of illness and the

concentration of urinary thallium correspond to the

amount of Coke ingested by each poisoned case.

-43-

Furthermore the clinical history of Mrs. P.C. is consistent

with her 2 successive exposures to the contaminated

Coke.

(R. 6565-66). Therefore, doctors both at the CDC and HRS believed

that Peggy Carr's illness and symptoms were consistent with her

consumption of the Coca-Colas laced with thallium. Neither doctor

hypothesized that the first signs of illness were due to chronic

exposure to arsenic, as Dr. Dulaney believes.

Thus, the defense team was faced with the knowledge that

thallium caused Peggy Carr's death, but that the three victims also had

arsenic present in their urine. Additionally, counsel knew that the initial

arsenic test result on Peggy Carr, which showed an extremely high

concentration of arsenic, was suspect. Counsel also knew that the

state was not prosecuting the defendant for arsenic poisoning. It is

not unreasonable for defense counsel to have focused their time and

energy on refuting the allegation that Mr. Trepal killed Peggy Carr by

thallium poisoning. Looking at the big picture of the trial, the presence

of arsenic raised some questions, but counsel had to focus their

efforts on what they knew (Peggy Carr died of thallotoxicosis).

Furthermore, the evidence and arguments presented at the evidentiary

hearing concerning the exposure to arsenic do not exclude the

defendant as the guilty party in that poisoning as well. Based upon the

uncertainty of the meaning of the arsenic levels, the uncertainty of the

test result and counsel's own knowledge and strategy, the court finds

that the defendant has failed to establish deficient performance and any

resulting prejudice in the "failure" to present to the jury the evidence

relating to arsenic.

As for Trepal's second point under this subclaim, i.e., that trial counsel was

ineffective in failing to challenge the State's case concerning the presence of

thallium found under the sink in an apartment on the Carr property, the circuit court

heard testimony relating to this point at the first evidentiary hearing and concluded

-44-

as follows:

The court allowed the defendant to inquire as to trial counsel's

alleged failure to address the trace amount of thallium (sample

88120536) discovered under the sink in the apartment of the Carr

property. (See, rule 3.850 motion, p. 98-100.) Trial counsel testified

that the thallium under the sink was an important issue for them to

explore. Wofford Stidham testified that he attempted to highlight the

discovery of thallium in the garage apartment for the jury. The

discovery was important because there was no evidence that the

defendant had access to the garage apartment, and therefore,

improved the chance of successfully pointing the finger at Pye Carr as

the poisoner. However, several of the state witnesses testified that the

level discovered in the apartment was a trace amount which was

insignificant. Also, Dr. William Coopenger, the administrator of the

chemistry section of the Florida Department of Environmental

Regulation, annotated a report authored by the Center for Disease

Control by writing "[r]insings from one swab collected from the

apartment kitchen contained thallium at a concentration of 9.916 mg/l.

Swabs collected subsequently from the same area and analyzed at the

FBI Laboratory failed to confirm this result." (R. 6448).

Even faced with evidence that the amount of thallium under the

sink was negligible and that the FBI could not confirm the presence of

thallium, counsel did continue to argue the issue, and the state had to

attempt to rebut the argument during closing arguments (R. 4188-90).

A review of the record indicates that defense counsel raised the issue

and argued the inferences to the jury. Simply because counsel were

not successful does not mean that they were ineffective.

Applying the Stephens standard of review, set forth above, to the circuit

court's ruling on this subclaim, we conclude that the court's factual findings are

supported by competent substantial evidence in the record, and the court properly

concluded—based on those findings—that counsel was not ineffective under the

15. This subclaim also embraces the following points: (1) the State withheld

(a) a letter that had been written from Peggy Carr to her husband, and (b)

intelligence reports written by Detective Goreck; and (2) trial counsel was

ineffective in failing to investigate (a) Trepal's speech impediment, and (b) the fact

that other people were aware of the threatening note that the Carr family had

received prior to the poisonings.

-45-

Sixth Amendment. We find no error.

V. SUBCLAIM (c): OTHER EXCULPATORY EVIDENCE

In his third subclaim, Trepal asserts that other exculpatory evidence existed

that should have been presented to the jury to establish reasonable doubt. He

contends inter alia that trial counsel was ineffective in failing to investigate other

evidentiary hearing and concluded as follows:

One portion of Claim #3 alleged that trial counsel were

ineffective for failing to present evidence of the "other suspects" to the

jury. The focus of this portion of Claim #3 is that the jury should have

known that Pye Carr (husband of the victim) and Diana Carr (wife of

the defendant) were both suspects in the murder.

Wofford Stidham testified that the defense team wanted to

show the jury that Pye Carr could have committed this crime.

However, the lawyers were concerned because they did not have any

substantive evidence that suggested Pye Carr was the poisoner.

Wofford Stidham further testified that in order to point the finger at the

man whose wife had just been poisoned and died, they needed

stronger evidence than they did have. Additionally, many of Judge

Mahoney's rulings, which were affirmed on appeal, precluded counsel

from presenting much of the evidence they believed to be favorable to

Mr. Trepal, and inculpatory of Pye Carr. Jonathan Stidham testified

that a tactical decision was made that it would be better strategy for

-46-

the defense to argue that the state could not prove its case, rather than

saying Pye Carr committed the crime. Jonathan Stidham stated that he

believed that if the defense tried to allege Pye committed the crime, the

jury would undertake a "Pye versus Trepal" analysis, and in such an

analysis, Jonathan Stidham believed that Mr. Trepal "lost that race

every time." The defense theory that developed was to raise

reasonable doubt without actually pointing the finger at specific

suspects.

As to Diana Carr, trial counsel testified that the defendant gave

them specific instructions not to attempt to implicate his wife in any

manner. This testimony was not contradicted by any witness.

Therefore, it is undisputed that trial counsel were restricted by the

express instructions of their client. Jonathan Stidham testified that the

attorneys decided to try to raise the question of Diana Carr as a

suspect in the closing argument of the guilt phase (R. 4246). Jonathan

Stidham stated that Mr. Trepal did not know about this strategy and

after the arguments were completed, Mr. Trepal was "very upset."

Further, counsel felt that to try to implicate Diana Carr would have

given credibility to the state's case. In order to argue the

circumstantial evidence pointed to Diana Carr, the defense would

necessarily have to argue that the circumstantial evidence was in fact

evidence that the jury should consider, when the defense theory was to

attempt to discredit the state's entire circumstantial evidence case.

Another concern was that more of the circumstantial evidence pointed

to the defendant rather than to Diana Carr.

A sub-issue as to Diana Carr has to do with the fact that

defense counsel did not elicit the fact that she was testifying under

immunity. Jonathan Stidham testified that he felt that Diana Carr's

testimony was not helpful to the state so he saw no need to attempt to

impeach her. This was clearly a tactical decision, which when

considered along with the desires of Mr. Trepal not to implicate his

wife, was reasonable and did not constitute ineffective assistance of

counsel.

The defendant also claims that Carolyn Dixon (sister of Pye

Carr) was a suspect and this information should have been presented

to the jury. A specific claim raised in paragraph #58, page 56 of the

3.850 motion concerned the court. The defendant claims that Carolyn

-47-

Dixon told Laura Ervins that Peggy Carr had been poisoned with

thallium some three days before the hospital knew thallium was

involved. Testimony at the evidentiary hearing indicates that Carolyn

Dixon did not know what the poison was prior to the announcement

by the hospital. It does appears that there is some confusion over the

actual date of the conversation between Carolyn Dixon and Laura

Ervins. However, Jonathan Stidham testified that he knew about the

conversation and wanted to raise the same argument that collateral

counsel raised in the rule 3.850 motion. Jonathan Stidham testified

that after investigating the issue, the dates did not check out and that

he abandoned the issue. The defendant has failed to establish

deficient performance or any prejudice regarding this issue.

Applying the Stephens standard of review, set forth above, to the circuit

court's ruling on this subclaim, we conclude that the court's factual findings are

supported by competent substantial evidence in the record, and the court properly

concluded—based on those findings—that counsel was not ineffective under the

Sixth Amendment. We find no error.

VI. CLAIM 5 (INEFFECTIVENESS OF PENALTY PHASE COUNSEL)

Trepal claims that trial counsel was ineffective during the penalty phase in

two ways: (a) in failing to present humanizing mitigating evidence; and (b) in failing

to argue lingering doubt as a mitigating circumstance. Specifically, as to subclaim

(a), Trepal argues as follows:

The mitigating evidence presented at the evidentiary hearing

consisted of numerous friends and family who provided heartfelt

testimony regarding Mr. Trepal's caring and generous reputation, as

well as his distressed youth and the effects of being a gifted intellectual

-48-

but social outcast. Mr. Trepal also presented numerous friends and

fellow Mensa members who testified that Mensa was an innocuous

social club with amiable members (including doctors, lawyers, and

even a Polk County judge), who enjoyed each other's company and

participated in harmless, intellectually stimulating activities. Simply

put, Mensa was a social group like many others in most communities.

This evidence was not presented to the jury, which instead was left

with the impression that Mensa was a group of weird misfits that are

dangerous and suspect. Finally, Mr. Trepal presented the testimony

of Dr. Francis Smith, an expert in speech pathology, who explained

that Mr. Trepal suffers from a neurologically-based speech

impairment, as well as Dr. Hilda Rosselli Kostoryz, an expert in special

education, giftedness, and higher learning, who explained the nature of

Mr. Trepal's giftedness, how it affected him as both a child and adult

in terms of social and professional interactions, and that among gifted

people, Mr. Trepal is a "normal" individual.

As to subclaim (b), Trepal asserts that appellate counsel was i