i

PAGE

NO.

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . . . 8

WHETHER THE LOWER COURT ERRED IN DENYING

TREPAL’S CLAIM THAT HIS TRIAL DID NOT

PROVIDE AN ADEQUATE ADVERSARIAL TESTING OF

GUILT.

ISSUE II . . . . . . . . . . . . . . . . . . . . . . . . 44

WHETHER THE LOWER COURT ERRED IN DENYING

TREPAL’S CLAIM REGARDING LAW ENFORCEMENT’S

ALLEGED CONFLICT OF INTEREST.

ISSUE III . . . . . . . . . . . . . . . . . . . . . . . . 48

WHETHER THE LOWER COURT ERRED IN DENYING

TREPAL’S CLAIM OF JUROR MISCONDUCT.

ISSUE IV . . . . . . . . . . . . . . . . . . . . . . . . 51

WHETHER THE LOWER COURT ERRED IN DENYING

TREPAL’S CLAIM ALLEGING ATTORNEY CONFLICT OF

INTEREST.

ISSUE V . . . . . . . . . . . . . . . . . . . . . . . . . 54

WHETHER THE LOWER COURT ERRED IN DENYING

TREPAL’S CLAIM THAT DEFENSE COUNSEL WAS

INEFFECTIVE IN PENALTY PHASE.

ISSUE VI . . . . . . . . . . . . . . . . . . . . . . . . 65

WHETHER THE TRIAL COURT ERRED IN RULINGS ON

PUBLIC RECORDS.

ii

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 70

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 70

CERTIFICATE OF TYPE SIZE AND STYLE . . . . . . . . . . . . . 70

iii

PAGE

NO.

Blanco v. State,

702 So. 2d 1250 (Fla. 1997) . . . . . . . . . . . . . . . . . 21

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . 16, 21, 23, 35, 36, 38, 46, 62, 67

Briscoe v. LaHue,

460 U.S. 325 (1983) . . . . . . . . . . . . . . . . . . . . . 21

Bryan v. Dugger,

641 So. 2d 61 (Fla. 1994),

cert. denied, 525 U.S. 1159 (1999) . . . . . . . . . . . . . 60

Buenoano v. Singletary,

963 F.2d 1433 (11th Cir. 1992) . . . . . . . . . . . . . . . 46

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) . . . . . . . . . . . . . . . . . 23

Chandler v. United States,

218 F.3d 1305 (11th Cir. 2000) . . . . . . . . . . . . . 49, 64

Cherry v. State,

659 So. 2d 1069 (Fla. 1995) . . . . . . . . . . . . . . . . . 60

Cuyler v. Sullivan,

446 U.S. 335 (1980) . . . . . . . . . . . . . . . . . . . . . 52

Darling v. State,

27 Fla. L. Weekly S541

(Fla. Jan. 3, 2002) . . . . . . . . . . . . . . . . . . . . . 62

Davis v. State,

736 So. 2d 1156 (Fla. 1999) . . . . . . . . . . . . . . . . . 20

Diaz v. Dugger,

719 So. 2d 865 (Fla. 1998),

cert. denied, 526 U.S. 1100 (1999) . . . . . . . . . . . . . . 9

Freeman v. State,

761 So. 2d 1055 (Fla. 2000) . . . . . . . . . . . . . . . . 9, 45

iv

Frye v. United States,

293 F. 1013 (D.C. Cir. 1923) . . . . . . . . . . . . 16, 17, 19

Garcia v. State,

622 So. 2d 1325 (Fla. 1993) . . . . . . . . . . . . . . . . . 62

Giglio v. United States,

405 U.S. 150 (1972) . . . . . . . . . . . . . . 14, 16, 19-21, 23

Guzman v. State,

721 So. 2d 1155 (Fla. 1998) . . . . . . . . . . 9, 24, 48, 51, 54

Kimmelman v. Morrison,

477 U.S. 365 (1986) . . . . . . . . . . . . . . . . . . . . . 49

Mills v. State,

603 So. 2d 482 (Fla. 1992) . . . . . . . . . . . . . . . 34, 61

Mills v. State,

786 So. 2d 547 (Fla. 2001) . . . . . . . . . . . . . . . . . 65

Napue v. Illinois,

360 U.S. 264 (1959) . . . . . . . . . . . . . . . . . . . 21, 22

Peede v. State,

748 So. 2d 253 (Fla. 1999) . . . . . . . . . . . . . . . . 9, 45

Preston v. State,

607 So. 2d 404 (Fla. 1992) . . . . . . . . . . . . . . . . . 63

Rivera v. Dugger,

629 So. 2d 105 (Fla. 1993) . . . . . . . . . . . . . . . 34, 60

Rose v. State,

675 So. 2d 567 (Fla. 1996) . . . . . . . . . . . . . . . 25, 59

Rutherford v. State,

727 So. 2d 216 (Fla. 1998) . . . . . . . . . . . . . . . . . 59

Smith v. Massey,

235 F.3d 1259 (10th Cir. 2000) . . . . . . . . . . . 21, 22, 52

Stano v. State,

520 So. 2d 278 (Fla. 1988) . . . . . . . . . . . . . . . 34, 61

State v. Davis,

720 So. 2d 220 (Fla. 1998) . . . . . . . . . . . . . . . . . 68

v

Stephens v. State,

748 So. 2d 1028 (Fla. 1999) . . . . . . . . . . 8, 24, 48, 51, 54

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . 24, 25, 60

Trepal v. State,

621 So. 2d 1361 (Fla. 1993),

cert. denied, 510 U.S. 1077 (1994) . . . . . . . . . . . . 2, 4

Trepal v. State,

704 So. 2d 498 (Fla. 1997) . . . . . . . . . . . . . . . . . . 5

Trepal v. State,

754 So. 2d 702 (2000) . . . . . . . . . . . . . . . . . . . . . 5

U.S. v. Hearst,

638 F.2d 1190 (9th Cir. 1980) . . . . . . . . . . . . . . . . 46

Valle v. State,

705 So. 2d 1331 (Fla. 1997) . . . . . . . . . . . . . . . . . 25

Ventura v. State,

794 So. 2d 553 (Fla. 2001) . . . . . . . . . . . . . . . . . 20

Waters v. Thomas,

46 F.3d 1506 (11th Cir. 1995) . . . . . . . . . . . . . . . . 64

Young v. State,

739 So. 2d 553 (Fla. 1999) . . . . . . . . . . . . . . . . . 62

1

On April 5, 1990, Appellant George Trepal was indicted for

the first-degree murder of Peggy Carr; 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) (DA-R. V18/4415-23). The

offenses stemmed from the poisoning of Trepal’s neighbors in

October, 1988, which resulted in Peggy Carr’s death on April 3,

1989. Following a four-week jury trial, Trepal was convicted as

charged.

The jury later reconvened and ultimately recommended the

death penalty by a vote of nine to three, and the trial judge

imposed a death sentence on March 6, 1991 (DA-R. V24/5475, 5549-

56). The judge found three statutory aggravating factors:

previously convicted of a 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 multiplechildren

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

2

cola into the Carr household). The judge found one statutory

mitigating factor (no significant history of prior criminal

activity--only one conviction for illegal manufacture of

amphetamines); and several nonstatutory mitigating factors

(happy childhood and marriage; high intelligence; above-average

adjustment to prison life; and kind and generous). The court

imposed, concurrent to the death penalty, a ninety-year sentence

for the remaining offenses.

On appeal, this Court affirmed the judgments and sentences.

Trepal v. State, 621 So. 2d 1361 (Fla. 1993), cert. denied, 510

U.S. 1077 (1994). The facts of the case are recited in this

Court’s discussion regarding the sufficiency of the evidence:

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."

3

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. 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 byproduct

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

4

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

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.

The evidence thus showed that Trepal had

motive; opportunity; means, including

knowledge, poison, and equipment; and had

made statements tying him to the crime. We

find this evidence sufficient to support the

jury’s verdict.

621 So. 2d at 1363-5 (footnotes omitted).

Trepal filed an amended motion for postconviction relief in

1996, and an evidentiary hearing was held in October, 1996, on

several of Trepal’s claims (PC-R. V7/1107; V13-V20). The

testimony from that hearing is discussed as relevant in the

argument portion of this brief. Relief was ultimately denied

and an appeal taken to this Court (PC-R. V20/3337-3377). Trepal

5

thereafter moved to relinquish jurisdiction to the circuit court

in order to conduct further postconviction litigation involving

allegations pertaining to the scientific testing conducted by

the FBI laboratory during the investigation in this case.

Trepal filed a motion for postconviction relief, and evidentiary

hearings were held in February, 1999 and July, 2000 (2PC-R.

SV8/1187-1249; SV18/2828-SV21/3456; SV22/3505-3644). Again,

the relevant testimony from that hearing is discussed in the

argument portion of this brief. In October, 2000, all relief

was denied (2PC-R. V17/2657-2692). Over the course of the

postconviction proceedings, two interlocutory appeals were taken

to this Court. Trepal v. State, 704 So. 2d 498 (Fla. 1997);

Trepal v. State, 754 So. 2d 702 (2000). This appeal follows.

6

1. Trepal’s guilt phase trial was conducted in accordance

with all legal and constitutional principles. The court below

properly denied Trepal’s claim regarding the validity of the

scientific evidence presented at trial, determining the

erroneous testimony did not affect the jury verdict. The court

also properly rejected Trepal’s claim that counsel was

ineffective with regard to the scientific issues at trial. The

other alleged exculpatory evidence argued by Trepal offered no

reasonable basis for postconviction relief. The trial court’s

conclusion that confidence in the result of the trial was not

undermined by the claims presented in this issue is supported by

the record.

2. Trepal failed to establish any conflict of interest by

law enforcement warranting postconviction relief. The

allegation that the Polk County Sheriff’s Office was motivated

by fame and fortune, evidenced by its negotiation of a movie

deal subsequent to Trepal’s trial, presents no constitutional

infirmity in his convictions and sentences. Trepal has not

identified any improper actions taken by law enforcement as a

result of the alleged improper motivation, and the court below

properly denied this claim.

3. Trepal’s claim of juror misconduct was properly denied

7

by the court below. The substantive claim of juror misconduct

was properly found to be procedurally barred, and Trepal failed

to meet his burden of establishing ineffective assistance of

counsel where inquiry by the trial judge demonstrated that no

juror misconduct had occurred.

4. Trepal failed to establish any attorney conflict of

interest warranting postconviction relief. Trepal has not shown

any actual conflict which affected his counsel’s performance.

5. The court below properly denied Trepal’s claim of

ineffective assistance of counsel during penalty phase.

Following the evidentiary hearing, the court below properly

found that Trepal's attorneys made a reasonable strategic

decision against presenting mitigating evidence.

6. The trial court’s rulings with regard to Trepal’s

postconviction public records requests were correct. A review

of the record establishes that the court below complied with all

applicable law in denying Trepal’s requests for additional

records to be disclosed.

conclusions entered below, which will be developed as relevant

in this brief; however, these concerns do not affect the

ultimate resolution of the issues presented.

8

Trepal initially asserts that the lower court erred in

denying his claim that his capital trial was constitutionally

deficient. Trepal has alleged three complaints about his trial:

that inadmissible scientific evidence was presented; that

counsel was ineffective with regard to scientific issues; and

that other exculpatory evidence was not presented to the jury.

Each of his allegations will be addressed in turn; as will be

seen, the lower court’s rulings involved the proper application

Therefore, Trepal is not entitled to a new trial on this issue.

Most of the allegations within this claim were subjected to

an evidentiary hearing. The denial of this claim involved the

application of legal principles to the facts as found below;

this Court must review the factual findings for competent,

substantial evidence, paying deference to the trial court’s

findings, and review of the legal conclusions is de novo.

9

Stephens v. State, 748 So. 2d 1028 (Fla. 1999); Guzman v. State,

721 So. 2d 1155, 1159 (Fla. 1998). To the extent that claims

were summarily denied, this Court must affirm where the trial

court properly applied the law and competent substantial

evidence supports its findings. Diaz v. Dugger, 719 So. 2d 865,

868 (Fla. 1998), cert. denied, 526 U.S. 1100 (1999). This Court

must accept the factual allegations in the motion to the extent

they are not refuted by the record, and the summary denial must

be upheld if the claims are facially invalid or conclusively

refuted by the record. Freeman v. State, 761 So. 2d 1055, 1061

(Fla. 2000); Peede v. State, 748 So. 2d 253, 257 (Fla. 1999).

A. FALSE AND INADMISSIBLE SCIENTIFIC EVIDENCE

Trepal’s first sub-issue challenges the admission of trial

testimony from FBI Special Agent Roger Martz. It is important

at the outset to place the dispute with regard to Martz’s

testimony in context. There is no question that Peggy Carr and

the other victims were poisoned with thallium; that it was not

possible to detect the particular form of thallium in the

victims’ systems; that thallium was discovered in three full,

capped bottles of Coca-Cola found in the victims’ house (Q1, Q2,

and Q3); and that thallium was found in a brown bottle (Q206)

found in Trepal’s garage -– all of this testimony was presented

10

through other witnesses. Agent Martz was responsible for

determining the particular ion associated with the thallium

found in the Coke bottles as well as the brown bottle from the

garage; that is, whether the salt form by which the thallium was

placed in the Coke was nitrate, sulfate, or chlorine (DA-R.

V14/3553, V16/4061-62).

At trial, Martz testified that, in his opinion, thallium

nitrate had been added to the Coca-Cola (DA-R. V14/3557, 3559).

He also testified that the brown bottle contained thallium I

nitrate (DA-R. V14/3562, 3565). There was no real issue

presented below with regard to Martz’s conclusion as to the

substance in the brown bottle; the only controversy involves

Martz’s testing and conclusion regarding the thallium contained

in the Coke bottles taken from the Carrs’ house (2PC-R.

SV17/2658-59).

Martz testified at trial that upon being asked to identify

the form of thallium found in the Coke bottles, he first

conducted a chemical test, diphenylamine ("DP"), in which a

chemical solution reacts to nitrate with a blue color (DA-R.

V14/3556). He performed the test and got a blue color,

indicating the presence of the nitrate ion (DA-R. V14/3556). He

ran this test with all three samples, and also with known,

unadulterated Coke; all three samples indicated the presence of

11

nitrate, but no nitrates were found in the known Coke samples

(DA-R. V14/3557, 3569). Martz noted that sulfate would not

react with a blue color, but it will react to other chemical

tests which he ran, and that none of his tests indicated the

presence of sulfate in the samples (DA-R. V14/3557-58).

Martz then conducted another test called ion chromatography

("IC") (DA-R. V14/3558). This test uses equipment; the sample

liquid is passed through a solid phase and different ions are

separated out (DA-R. V14/3558). The different ions come out at

different times, and there is a detector and recorder which

measures the response times from which a particular ion can be

identified (DA-R. V14/3558). Martz stated that he tested the

samples and that all three samples contained nitrate ions (DA-R.

V14/3558-59). From these two tests, Martz concluded that the

three Coca-Cola samples contained thallium nitrate (DA-R.

V14/3559).

On cross-examination, he was asked if his tests revealed any

different isotopes of thallium that might affect the atomic

weight, and he indicated that he had conducted another test

which he had not mentioned because it wasn’t used for

identification, but when he ran the mass spectrometry, he was

able to identify the major isotopes of thallium present (DA-R.

V14/3568). Martz did not attempt to quantitate the amount of

12

nitrate present or determine if the amount of nitrate matched up

with the amount of thallium that had been detected (DA-R.

V14/3560, 3568). However, he stated that in his opinion, the

nitrate did not come from anywhere other than the thallium

because nothing else he found in the Coke indicated anything

else was present; he acknowledged that he could not exclude the

possibility that the nitrate may have come from somewhere else

(DA-R. V14/3568).

At the postconviction evidentiary hearing, Martz testified

extensively about all of the tests which were conducted on the

Coke samples, not only to identify the nitrate but also to

exclude the possibility of sulfate and chlorine. He recognized

that his prior testimony was inaccurate in several respects. He

noted that his statement that his conclusion on the presence of

thallium nitrate was "based on that test," after discussing the

DP test was misleading, because his conclusion was actually

premised on both the DP and IC tests; the DP test was a

presumptive screening for oxidizing agents and a blue color

meant only that it could have been a nitrate that was added to

the Coke (2PC-R. SV18/2899, 2921, 2925). He admitted that,

contrary to his testimony, he had not actually performed the IC

test on the third Coke bottle, Q3; he did not believe this test

was necessary because he felt that Q1 and Q2 offered a

13

representative sample, and his results on both of these

specimens were consistent (2PC-R. SV18/2927-28). He also

acknowledged that his lab notes were, in some respects,

incomplete and mislabeled (2PC-R. SV18/3035).

Martz maintained, however, that his opinion today would be

the same as his trial testimony. He stated that no other

substances besides nitrate would yield positive results on both

the DP and IC tests (2PC-R. SV19/2977-78, 2982, 3043). Prior to

the hearing, he had successfully quantified the nitrate found in

the samples, and determined that the nitrate and thallium were

present in a one-to-one relationship; the stoichiometry was

equal (2PC-R. SV19/2990-93, 3031). Two other witnesses at the

hearing (Jourdan and Burmeister) agreed that, to a reasonable

degree of scientific certainty, Martz’s testing and quantitative

analysis demonstrated that thallium nitrate had been added to

the Coke (2PC-R. SV20/3147, 3195). However, other witnesses

(Whitehurst and Dulaney) at the hearing criticized Martz for

running the known standard of nitrate for the IC test in water

rather than unadulterated Coke, and opined that this invalidated

Martz’s IC tests and consequently his quantification results.

These witnesses concluded that Martz’s testing established only

that the Coke samples were "consistent with" thallium nitrate

having been added.

14

The court below concluded that Martz’s testimony was false

and misleading, agreeing that Martz should have limited his

testimony to an opinion that the results of his testing were

consistent with thallium nitrate having been added to the Coke.

However, the court denied relief upon finding that this

testimony could not have affected the jury verdicts and that

confidence in the result of Trepal’s trial was not undermined

(2PC-R. SV17/2678-79). The court found that Martz’s testimony

was false because Martz only ran the Q1 and Q2 samples through

the IC test, although he testified that the IC test was run on

all three samples. The judge also characterized the testimony

as false for affirmatively stating that thallium nitrate was

added, rather than stating that the results were consistent with

thallium nitrate being added. The court found that Martz

provided misleading testimony when he stated that the

unadulterated Coke did not contain nitrates, because Martz did

not reveal that when the known Coke samples were run through the

IC test, the retention peaks indicated that nitrate was present,

notwithstanding the fact that the DP test did not confirm the

presence of nitrate (2PC-R. SV17/2678-79).

The court below also concluded that Martz’s testimony was

false because Martz had failed to reveal the additional testing

which had been conducted (2PC-R. SV17/2679). The court cited

15

Giglio for the proposition that withholding information can

constitute a falsity. The State respectfully takes issue with

the court’s conclusion in this regard. While Giglio

acknowledged that the nondisclosure of evidence affecting

credibility was included in the general rule of that decision,

the fact that the Coke samples in this case were subjected to

further testing did not impugn Martz’s credibility. Martz was

not asked about additional testing, and in fact when asked about

the isotopes of thallium, he revealed that he had conducted a

mass spectrometry test which he had not discussed previously

since it did not affect his identification of nitrate (DA-R.

V14/3568). He explained at the evidentiary hearing that the

additional testing was conducted, not because he did not have

confidence in the DP and IC test results, but because thallium

was an uncommon substance, there were no protocols to govern his

testing, and he tried a number of different tests -- some of

them experimental in nature -- in an attempt to find out as much

as he could (2PC-R. SV19/3024-27). Ultimately, he determined

that only the DP and IC tests provided any useful information.

On these facts, the court’s conclusion that the information

that Martz had conducted additional tests may have been useful

to the defense to suggest that Martz was not satisfied with his

initial tests results does not support the court’s finding that

16

Martz testified "falsely" in failing to reveal the other tests.

Martz should not be criticized for failing to reveal something

that no one asked about just so that the defense could argue an

implication to the jury which did not exist. Although this does

not affect the lower court’s ultimate conclusion that Martz’s

false testimony did not affect the jury verdict, it suggests

that the court below was unfairly critical of Martz and

therefore the lower court’s factual findings may reasonably be

questioned.

Trepal offers three bases for the granting of a new trial

due to the trial court’s finding that Martz’s testimony was

false and misleading: that such testimony violated the standard

for reliability of scientific testimony under Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923); that such testimony

violated the prohibition against the knowing use of false

testimony in Giglio v. United States, 405 U.S. 150 (1972); and

that information revealing the deficiencies in Martz’s testing

should have been disclosed to the defense prior to trial

pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Each of

these arguments will be addressed in turn; as will be seen, the

facts of this case do not compel a new trial under the

application of any relevant legal principles.

Frye question. Three witnesses testified at the hearing that

Martz’s conclusion that thallium nitrate was added to the Coke

samples was proven within a reasonable degree of scientific

certainty (2PC-R. V19/3043, 3147, 3195.

17

1. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

Trepal initially alleges that, because Martz’s testimony

would not meet the standards for admission under Frye, he is

entitled to a new trial. Trepal suggests that, if the

deficiencies in Martz’s testing had been disclosed prior to

trial, the defense could have interposed a Frye challenge and

successfully excluded this testimony. The problem with Trepal’s

Frye claim is that the question of whether scientific evidence

is reliable enough to be admitted under that standard is an

issue which must be litigated at the time of trial, and a Frye

challenge must be presented on the record and asserted on direct

appeal. Even if the testimony below did not satisfy the Frye

to Trepal in these postconviction proceedings.

The fallacy with Trepal’s argument is that, had Martz’s

testing been subject to further scrutiny prior to being admitted

at trial, any deficiencies could have been corrected with new,

more reliable testing and data. The challenged testimony would

not have been excluded but would have been corrected and in fact

strengthened. There is no allegation that the nature of the

18

testing itself is such that, when properly conducted, the

results would not be generally accepted within the scientific

community. The fact that any deficiencies could be cured

demonstrates the reason a Frye challenge must be timely

presented, and establishes that Trepal cannot obtain any relief

on his Frye claim in these postconviction proceedings.

Finding this claim to be barred clearly does not preclude

Trepal from offering a reasonable argument with regard to this

evidence, it simply changes the appropriate legal analysis to be

conducted. Even if a pretrial Frye challenge would have limited

Martz’s testimony to that accepted below, it would not have

excluded his testimony but only have restricted it to an opinion

that the tainted Coca-Cola was consistent with having thallium

nitrate added to the Coke. Trepal’s current claim that "the

contents of the Coke samples and Q206 were not even what Martz

said they were" (Appellant’s Initial Brief, p. 47), is a total

misrepresentation; there has never been any evidence presented

that the Coke samples did not, in fact, contain thallium

nitrate. The only criticism of Martz’s work goes directly to

the certainty with which Martz presented his conclusions. The

court below specifically found that Martz could have properly

testified "that test results were consistent with the presence

of nitrate" in the samples (2PC-R. SV17/2679).

19

Trepal further asserts that the erroneous admission of

Martz’s testimony also affected the testimony of Broughton and

Warren as to Trepal’s involvement in the methamphetamine lab in

the 1970s because, without the conclusion that the tainted Coke

contained thallium nitrate, the testimony relating thallium

nitrate to methamphetamine production would not have been

relevant. This argument is without merit because, as the court

below found, even if Martz could not identify thallium nitrate

as having been "added" to the Coke, he could have properly

testified that the test results on the tainted Coke were

consistent with thallium nitrate having been added (2PC-R.

SV17/2679). Such testimony would have been a sufficient

predicate for the relevance of Trepal’s knowledge of and access

to thallium nitrate as part of his participation in the

methamphetamine lab, and therefore the Broughton/Warren

testimony still could have been admitted.

This Court should expressly find Trepal’s substantive Frye

claim to be procedurally barred, and restrict the legal analysis

of Trepal’s issue regarding the admissibility of Martz’s

testimony to proper postconviction principles.

2. Giglio v. United States, 405 U.S. 150 (1972)

Judge Bentley concluded that the proper analysis of this

20

issue is governed by Giglio’s proscription against the

prosecution’s knowing use of false testimony. As noted above,

the court identified portions of Roger Martz’s trial testimony

as false and misleading. Trepal claims that the court’s Giglio

analysis was erroneous because he believes that the court used

an incorrect legal standard for the determination of

materiality. The analysis of materiality with regard to the

problems presented by Martz’s trial testimony is the core issue

presented by Trepal’s challenge to Martz’s testimony.

A review of the court’s order establishes that the court

below applied the correct legal standard in considering the

materiality of Martz’s testimony. The court noted the relevant

inquiry of whether "there is a reasonable likelihood that it

could have effected [sic] the jury verdict," and concluded that

confidence in the verdict had not been undermined (2PC-R.

SV17/2689). See Ventura v. State, 794 So. 2d 553, 562 (Fla.

2001). Trepal does not suggest a different standard, he merely

disagrees with the lower court’s reliance on other evidence at

trial and with the ultimate conclusion that Martz’s testimony

was not materially erroneous. Trepal cites no authority for the

suggestion that the court cannot consider other evidence as part

of a proper materiality analysis.

The State respectfully submits that the court’s materiality

21

analysis was in fact improperly beneficial to Trepal. Although

the court applied the materiality standard for a Giglio claim,

the facts of this case are more appropriately analyzed as a

straight newly discovered evidence issue. This entire claim was

presented to the court below as one of newly discovered

evidence. See also Davis v. State, 736 So. 2d 1156 (Fla. 1999)

(issue claiming Whitehurst’s allegations against FBI lab

presented as newly discovered evidence). The difference between

a newly discovered evidence claim and a Giglio claim involves

the degree to which the prosecutor is aware of, and responsible

for, the erroneous evidence. Compare Ventura, 794 So. 2d at 562

(Giglio requires showing that 1) the prosecutor or witness gave

false testimony; 2) the prosecutor knew the testimony was false;

and 3) the statement was material) with Blanco v. State, 702 So.

2d 1250, 1252 (Fla. 1997) (newly discovered evidence requires

showing 1) information was unknown to the trial court, the

party, and counsel at the time of trial; 2) information was

undiscoverable by due diligence; and 3) information would

probably produce an acquittal at trial). Although Trepal will

obviously assert that the prosecutor must be charged with

knowledge of Martz’s improprieties under the theory that, for

Brady and Giglio purposes, actions of law enforcement are

imputed to the prosecutor, this principle may not be applied

22

mechanistically.

In similar situations, federal courts have declined to

impute the knowledge of improper testimony from state expert

witnesses to the prosecutor. In Smith v. Massey, 235 F.3d 1259

(10th Cir. 2000), the court considered a Napue v. Illinois, 360

U.S. 264 (1959), claim of false testimony with regard to a

chemist from the Oklahoma State Bureau of Investigation. The

defendant had argued that, because the witness was an OSBI

agent, his knowing decision to provide inaccurate testimony

should be imputed to the prosecution. The circuit court refused

to do so, noting that the United States Supreme Court had not

directly addressed the issue, but that in Briscoe v. LaHue, 460

U.S. 325, 326 n.1 (1983), the Court stated that "[t]he Court has

held that the prosecutor’s knowing use of perjured testimony

violates due process, but has not held that the false testimony

of a police officer in itself violates constitutional rights."

The Smith v. Massey court also acknowledged that federal circuit

courts appeared to be split on the issue of imputing a Napue

violation by law enforcement officers to the prosecution. 235

F.3d at 1272.

On the facts of this case, Martz’s overstated testimony

should not be imputed to the prosecutor, who may be skilled in

the law but not an expert in complex scientific matters.

23

Without a showing that the prosecutor in this case knowingly

presented false testimony from Agent Martz, this claim is

properly analyzed as a newly discovered evidence claim,

requiring Trepal to demonstrate that, absent Martz’s

overstatements, he would probably have been acquitted. Although

rejecting the suggestion below that Trepal’s allegations

constituted newly discovered evidence, the lower court did

alternatively rule that the material challenging Martz’s

testimony could not meet the standard of probably producing an

acquittal or life sentence (2PC-R. SV17/2686).

Trepal has failed to demonstrate that he is entitled to a

new trial due to the prosecutor’s knowing use of false testimony

at his trial. The court below properly denied the materiality

element of this claim, and no relief is warranted.

3. Brady v. Maryland, 373 U.S. 83 (1963)

Trepal’s Brady claim was also rejected by the court below,

which held that Martz’s lab notes could not be considered to be

Brady material because they were not exculpatory prior to trial,

but could only be regarded as possibly exculpatory after Martz

testified. This analysis was proper and consistent with prior

cases where this Court has considered the FBI lab issue. See

24

Buenoano v. State, 708 So. 2d 941, 953, n.5 (Fla. 1998)

("Clearly, none of Whitehurst’s recently obtained opinions about

the techniques Martz used in reaching his conclusions concerning

the capsules can be considered favorable evidence that was

withheld by the State, under Brady").

Moreover, even if the court below was incorrect with regard

to the applicability of Brady, no relief is warranted because

the court’s conclusion that Trepal cannot establish the

materiality standard from Giglio would still defeat his claim.

As this Court has recognized, the Brady standard is actually

more difficult for the defendant to meet than the Giglio

standard applied below. Ventura, 794 So. 2d at 563. Given the

other strong circumstantial evidence presented at trial, and the

fact that Martz’s testimony may have been weakened by

impeachment through his lab notes but would still be highly

incriminating, no reasonable likelihood of an acquittal exists.

Thus, no relief is warranted on Trepal’s Brady claim.

B. INEFFECTIVE ASSISTANCE OF COUNSEL: FAILURE TO OBTAIN

TOXICOLOGY EXPERT AND PRESENT EVIDENCE REGARDING OTHER

SCIENTIFIC ISSUES

Trepal’s second sub-issue in his claim that the guilt phase

of his trial did not provide an adversarial testing of his guilt

asserts that his trial counsel was ineffective for failing to

25

obtain an expert in toxicology to adequately challenge the

State’s evidence with regard to the scientific testimony. The

court below concluded, following evidentiary hearing on this

claim, that neither deficiency nor prejudice had been shown.

The denial of this claim involved the application of legal

principles to the factual findings made below; this Court must

review the factual findings for competent, substantial evidence,

paying great deference to the trial court’s findings, and review

of the legal conclusions is de novo. Stephens v. State, 748 So.

2d 1028 (Fla. 1999); Guzman v. State, 721 So. 2d 1155, 1159

(Fla. 1998).

Of course, claims of ineffective assistance of counsel are

controlled by the standards set forth in Strickland v.

Washington, 466 U.S. 668 (1984). In Strickland, the United

States Supreme Court established a two-part test for reviewing

claims of ineffective assistance of counsel, which requires a

defendant to show that (1) counsel’s performance was deficient

and fell below the standard for reasonably competent counsel and

(2) the deficiency affected the outcome of the proceedings. The

first prong of this test requires a defendant to establish that

counsel’s acts or omissions fell outside the wide range of

professionally competent assistance, in that counsel’s errors

were "so serious that counsel was not functioning as the

26

‘counsel’ guaranteed the defendant by the Sixth Amendment." 466

U.S. at 687, 690; Valle v. State, 705 So. 2d 1331, 1333 (Fla.

1997); Rose v. State, 675 So. 2d 567, 569 (Fla. 1996). The

second prong requires a showing that the "errors were so serious

as to deprive the defendant of a fair trial, a trial whose

result is reliable," and thus there is a reasonable probability

that, but for counsel’s errors, the result of the proceedings

would have been different. Strickland, 466 U.S. at 687, 695;

Valle, 705 So. 2d at 1333; Rose, 675 So. 2d at 569.

Proper analysis of this claim requires that courts make

every effort to eliminate the distorting effects of hindsight by

evaluating the performance from counsel’s perspective at the

time, and to indulge a strong presumption that counsel rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment; the burden is on

the defendant to show otherwise. Strickland, 466 U.S. at 689.

Trepal identifies three issues which allegedly reflect the

need for a toxicology expert at trial. Each of these will be

explored; however, once again, no basis for relief has been

offered.

1. Arsenic

Trepal first asserts that the postconviction evidence

27

suggesting that Peggy Carr, Duane Dubberly, and Travis Carr all

had elevated levels of arsenic in their systems while in the

hospital established that they had been poisoned with arsenic in

addition to thallium, and that this testimony would have

exculpated Trepal since he was never alleged to have possessed

arsenic or to have been in contact with the victims while they

were in the hospital.

The court below considered all of the evidence about the

arsenic levels in the victims’ systems over the relevant time

period, and concluded that counsel was not deficient:

7. 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

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, 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

28

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 it 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 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).

29

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

30

that there were two separate poisoning

attempts.

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:

[t]he clinical history of Mrs. P.C.

[Peggy Carr], with an acute phase,

followed by apparent improvement, and a

31

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.

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

32

and any resulting prejudice in the "failure"

to present to the jury the evidence relating

to arsenic.

(PC-R. V20/3362-66). Thus, the court rejected the contention

that counsel should have more thoroughly explored the arsenic

evidence during the trial.

This finding was correct. Without question, Peggy Carr died

of thallium poisoning, and any attempt by the defense to sidestep

that issue and address only facts which did not contribute

to Peggy’s death would not have had an exculpatory effect. The

court’s factual finding below that "[t]he presence of arsenic in

the urine of the victims has also been adequately explained"

(PC-R. V20/3340), is entitled to deference, and clearly defeats

Trepal’s claim on this issue.

As part of this issue, Trepal comments that, with regard to

the FBI lab issue, the court below found counsel to have been

deficient for the failure to retain an expert to assist the

defense. The court’s finding in this regard deserves scrutiny.

Jonathan Stidham and Dabney Conner testified at the evidentiary

hearing that, prior to trial, the defense retained an expert

from Georgia Tech and secured independent testing on the Coke

samples which Roger Martz had found to contain thallium nitrate

(2PC-R. SV22/3521-22, 3545-53). The fact that Conner stated

that he was "never really happy with the results of the Georgia

Tech lab" does not establish that counsel were deficient in

33

failing to secure yet another expert.

On these facts, no basis for a finding of ineffective

assistance of counsel has been presented, and the court below

properly denied relief on this issue.

2. Thallium Increase in Hospital

Trepal also asserts that counsel were deficient in failing

to investigate and develop evidence regarding the medical

records which showed Travis Carr’s thallium levels increased

during the time that he was in the hospital. Trepal relies on

the admission of the records below, and asserts that these

records clearly establish his innocence.

The court below concluded that Trepal failed to offer any

evidence on this claim. The court may have been referring to

the fact that Trepal presented no testimony at the hearing with

regard to the medical records or any possible medical

significance of the thallium readings. Although granted an

evidentiary hearing on this claim, Trepal failed to offer any

basis for a finding that the information reflected in Travis

Carr’s medical records established that Travis continued to

receive poison while in the hospital. His bare reliance on the

alleged "obvious significance" of the medical records is plainly

insufficient. The court below found that the medical records

did not have any significance by themselves, and thus Trepal’s

34

allegation of ineffective assistance of counsel was factually

deficient. This factual finding is entitled to deference in

this Court and refutes Trepal’s argument on this issue. No

relief is warranted.

3. Thallium on Pye Carr’s Property

Trepal’s final reason for seeking a toxicology expert

involved the evidence that thallium had been discovered under

the sink in an apartment on the Carr property. At the

evidentiary hearing, Trepal presented testimony suggesting that

the amount of thallium discovered was significant. The court

below concluded, however, that trial counsel had appropriately

addressed this issue with the jury:

6. 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

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

35

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/9. 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.

(PCR. V20/3361-62).

Once again, the lower court’s analysis was proper. The mere

fact that collateral counsel would choose a different method of

addressing this evidence does not establish that Trepal’s trial

attorneys were constitutionally deficient. A review of this

issue indicates only that current counsel would have handled the

scientific issues at trial differently; this is not the test for

ineffectiveness. Rivera v. Dugger, 629 So. 2d 105, 107 (Fla.

1993) ("The fact that postconviction counsel would have handled

an issue or examined a witness differently does not mean that

the methods employed by trial counsel were inadequate or

prejudicial"); Mills v. State, 603 So. 2d 482, 485 (Fla. 1992);

Stano v. State, 520 So. 2d 278, 281, n. 5 (Fla. 1988) (noting

36

fact that current counsel, through hindsight, would now do

things differently is not the test for ineffectiveness). On

these facts, no error has been presented with regard to the

trial court’s rejection of Trepal’s claim that his attorneys

were ineffective for failing to secure a toxicology expert at

trial.

C. OTHER EXCULPATORY EVIDENCE

Trepal’s last contention with regard to the adversarial

testing provided by his guilt phase trial claims that other

exculpatory evidence existed which should have been presented to

the jury to establish reasonable doubt. None of his sub-issues

in this regard compel the granting of any relief.

1. Brady v. Maryland, 373 U.S. 83 (1963)

Trepal presents an additional Brady claim with regard to (1)

a letter which had been written from Peggy Carr to her husband,

Pye, and (2) intelligence reports written by Detective Goreck.

He asserts that Peggy’s letter was exculpatory because it

demonstrated that the marriage was in trouble and would have

bolstered the defense theory that Pye Carr committed these

crimes, and that the police reports would have revealed the true

nature of the investigation against Trepal for these crimes.

The court below properly rejected relief on the facts presented.

37

With regard to the letter, the court commented below:

The state’s failure to disclose the note is

troubling, but ultimately harmless. Wofford

Stidham said that he was unsure whether the

defense team would have even used the note

had they known of it. The material may have

lead to other evidence, but the actual

meaning of the note is nebulous. It would

not have helped to implicate Pye Carr in the

murder. The fact that the marriage was in

trouble was brought out at trial. The

meaning of the note is vague, and it

arguably would have been inadmissible at

trial.

(PC-R. V20/3340). The letter was not exculpatory to Trepal. It

would not have been admissible due to its hearsay nature, and it

did not provide any information which the defense did not

already know.

There was evidence presented at Trepal’s trial to establish

that Peggy and Pye were having marital problems prior to the

poisonings. Trepal was permitted to elicit testimony from Rita

Tacker that Peggy Carr had taken the children and stayed with

Tacker for a few days because Peggy and Pye were having marital

problems (DA-R. V8/1537); testimony from Peggy’s daughter,

Sissy, that Sissy believed Pye should have taken Peggy to the

hospital sooner (DA-R. V9/1646); testimony from Pye

acknowledging that there had been marital trouble (DA-R.

V14/3667); testimony from law enforcement that Pye was a prime

suspect but ultimately excluded as the perpetrator (DA-R.

38

V11/3006; V12/3173, 3178); and testimony from the Carrs’ pastor,

Robert Grant, and from Peggy’s son, Duane Dubberly, that Pye and

Peggy were separated just before Peggy got sick (DA-R. V14/3616,

3666). Given this testimony, the note did not offer any

material exculpatory evidence, and no Brady error is shown by

the State’s failure to disclose this note to the defense.

The claim regarding Goreck’s intelligence reports is

similarly without merit. Trepal asserts that the reports would

have assisted the defense by suggesting that Goreck knew that

the brown bottle found in Trepal’s garage contained thallium

before the bottle had actually been tested by the FBI. The

court below rejected this factually:

(4) The allegation raised in Claim #7 on

page 175, paragraph 32, caused some concern.

The court permitted a hearing to determine

if the allegations that Polk County

Sheriff’s Office Lt. Susan Goreck knew the

contents of the bottle "Q206" prior to

receiving the test results were true. The

implication is that Lt. Goreck knew the type

of thallium in Q206 prior to receiving the

test results because law enforcement planted

the bottle in the defendant’s garage.

At the evidentiary hearing, Susan Goreck

testified that she received a telephone call

from FBI Agent Brad Brekke on March 5, 1990.

During the call, Agent Brekke told Lt.

Goreck that the FBI laboratory found

thallium I nitrate in bottle Q206. On March

6, 1990, Lt. Goreck called the lab and the

lab confirmed that the substance in Q206 was

in fact thallium I nitrate. On March 15,

1990, Lt. Goreck prepared an intelligence

report documenting the two telephone

conversations. On April 24, 1990, the FBI

lab sent a written report to the Polk County

39

Sheriff’s Office. However, the written

report merely stated that the substance

found in Q206 was "thallium." The report

did not state the exact type of thallium.

Lt. Goreck testified that she then called

the FBI lab and requested a more specific

report. On July 9, 1990, the FBI lab sent a

detailed report to Lt. Goreck which stated

that the substance in Q206 was thallium I

nitrate. Lt. Goreck also testified that she

had no knowledge that Q206 contained

thallium prior to the March 5, 1990,

telephone conversation with Agent Brekke.

The evidence presented at the evidentiary

hearing is sufficient to refute this claim.

(PC-R. V20/3372-73). Given these findings, which are clearly

supported by the testimony below, the reports did not contain

any material, exculpatory evidence. Trepal’s Brady claim on

this basis was properly denied.

2. Ineffective Assistance of Counsel

Trepal next asserts that exculpatory evidence existed in the

nature of information incriminating other suspects, information

that Trepal suffered from a speech impediment, and information

that other people were aware of the threatening note which the

Carr family had received prior to the poisonings; he claims that

counsel was ineffective for failing to present all of this

evidence to the jury. It should be noted that the record

reflects that the jury did hear evidence about the existence of

other suspects as well as evidence about Trepal’s speech

impediment (DA-R. V11/2096, V12/3177-80; V14/3580). A review of

the record and the findings of the court below demonstrates that

40

Trepal’s claim of ineffective assistance of counsel with regard

to this evidence is without merit.

The court below properly rejected this claim with regard to

the evidence about other suspects, finding:

One portion of Claim #3 alleged that

trial counsel were ineffective for failure

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 Maloney’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 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

41

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 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 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

42

evidentiary hearing indicates that Carolyn

Dixon did not know what the poison was prior

to the announcement by the hospital. It

does appear 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.

(PCR. V20/3356-58).

Thus, the testimony at the evidentiary hearing below

established that Trepal’s counsel investigated and considered

the facts now alleged, and employed reasonable trial strategy in

addressing or declining to address these issues. As previously

noted, the fact that current counsel would handle the facts

involving other possible suspects differently does not offer a

basis for finding trial counsel to have been ineffective. No

error is presented with regard to the denial of this claim.

The claim regarding counsel’s failure to present evidence

of Trepal’s speech impediment to the jury is similarly without

merit. In fact, Diana Carr testified that Trepal had a speech

impediment (DA-R. V14/3580). Although the State’s objection to

this testimony was sustained, the witness answered the question

before the objection was made and therefore the jury heard this

information. Counsel can hardly be deemed ineffective simply

43

because the trial judge sustained the objection. In addition,

as the court below noted, such evidence was only marginally

relevant and would provide little, if any, exculpatory value.

It is clear that the jury did not convict Trepal simply because

he acted suspiciously when first interviewed by the police.

Although his speech was one of several factors arising from that

initial interview which caused the police to focus on Trepal as

a suspect, it had little significance by itself.

Finally, the suggestion that Trepal’s attorneys were

ineffective for failing to present a neighbor, Thomas Blair, to

establish that the Carrs’ receipt of the threatening note was

common knowledge, was also properly rejected below. The court’s

factual findings with regard to this claim are important:

At trial it was shown that Pye Carr

received a threatening note in June, 1988,

approximately four months prior to the

poisonings. The note stated that [y]ou and

all your so-called family have two weeks to

move out of Florida forever or else you will

all die. This is no joke." (R. 1595). The

defendant claims that the state focused upon

the fact that when Mr. Trepal spoke to law

enforcement, he used very similar language

as that contained in the note and that Mr.

Trepal’s use of similar language led law

enforcement to consider him a suspect.

The defendant alleged that several

people knew about the note. Specifically,

Tony Blair knew about the contents of the

threatening note received by the Carr

family. The allegation that Tony Blair knew

about the language of the letter is

potentially contradictory to the state’s

argument at trial. However, at the

evidentiary hearing, Tony Blair stated that

44

he never knew the exact words of the note,

but just knew that the family had received a

"threatening note." Further, at trial, both

Detective Mincey and FBI Agent Brekke

testified that they considered Mr. Trepal a

suspect because he was the only person they

had interviewed who, in response to the

question "why would someone want to poison

the Parearlyn Carr family?", answered that

somebody wanted them to move out of their

residence, like they did. (R. 2077; 3176-

77). The defendant has failed to

demonstrate any deficient performance of

counsel or resulting prejudice. Any claim

for relief based on this issue is denied.

PCR. V20/3359).

In conclusion, no basis for a new trial is offered in

Trepal’s claim that his trial was constitutionally deficient and

failed to provide an adversarial testing of his guilt. These

claims were properly denied by the court below, and no error has

been presented with regard to the findings and conclusions

supporting the court’s rejection of these claims. No

postconviction relief is warranted.

45

Trepal’s second issue contests the trial court’s denial of

his allegation that law enforcement harbored a conflict of

interest which affected the criminal investigation in this case.

The trial court ruled that Trepal could present evidence on this

claim at the hearing, but that such evidence would only be

relevant to the extent that it could establish that law

enforcement operated under a conflict of interest prior to

Trepal’s trial. Since no such evidence was submitted, the court

denied Trepal’s claim as meritless:

The defendant also alleges that the state

was hampered by a fundamental conflict of

interest because it was motivated by

ulterior motives of fame and fortune. ...

Claim #7 contains numerous conclusions

and speculates that law enforcement were

obsessed with this case and the possibility

of a potential motion picture deal. There

has been no evidence presented to

substantiate these claims even though the

defendant received all of the documents

related to the initial movie negotiations

and has taken numerous depositions. The

defendant raises allegations with no factual

basis. The court permitted the defendant to

address this claim at the evidentiary

hearing if the defendant had any direct

evidence that there were any movie

negotiations or any financial offers made to

the Polk County Sheriff’s Office prior to

the defendant’s trial and conviction.

Without this evidence, there is no

meritorious claim because the court finds

that any negotiations after the trial and

46

sentencing do not undermine confidence in

the finding of guilt and sentence of death.

The defendant did not present any evidence

as to this allegation at the hearing and the

court finds that the claim is facially

insufficient to merit relief.

(PCR. V20/3346-47).

Trepal now asserts that the court’s ruling was incorrect.

To the extent that this claim is considered summarily denied by

the court’s limitation on what Trepal could present at the

hearing, this Court must accept the factual allegations in the

motion to the extent they are not refuted by the record, and the

summary denial must be upheld if the claims are facially invalid

or conclusively refuted by the record. Freeman, 761 So. 2d at

1061; Peede, 748 So. 2d at 257.

Although Trepal provides a number of allegations to suggest

that the Polk County Sheriff’s Office was interested in and

contemplating a potential movie deal during this investigation,

he fails to attach any significance to such a deal because he

does not explain any actual influence or affect that this

alleged motivation may have had on the investigation. He

identifies the underlying constitutional violation as "law

enforcement had an agenda to arrest Mr. Trepal based on improper

motivations, i.e., the expectation of fame and fortune, and thus

were just as biased as a snitch who expects a reward in exchange

for his testimony" (Appellant’s Initial Brief, p. 82). He does

not offer any authority for finding a constitutional violation

47

on this basis.

The fact that there was "pressure" to solve the case, from

whatever source, does not demonstrate any constitutional

deficiency in the actions of the sheriff’s office. Trepal does

not identify any particular action taken which may have violated

any of his rights or affected the fairness of his trial. As the

court characterized this claim below, Trepal’s complaint

"appears to be that law enforcement did its job and ultimately

solved the case" (PC-R. V20/3347). Such a claim does not

provide any reasonable basis for disturbing the convictions and

sentences in this case.

Trepal’s reliance on Buenoano v. Singletary, 963 F.2d 1433

(11th Cir. 1992), and U.S. v. Hearst, 638 F.2d 1190 (9th Cir.

1980), to suggest that the actions of law enforcement may have

been affected by the motivation of a possible movie deal, is

clearly misplaced. In those cases, the trial defense attorneys

were attacked as having been influenced by improper motives

during the trial. Given the obvious differences in the roles of

trial counsel and law enforcement in the criminal justice

system, these cases are not relevant to the issue presented

below.

This claim was alleged below as a violation of Brady v.

Maryland, 373 U.S. 83 (1963), based on the state’s alleged

failure to disclose "the true extent of the investigation" (PC-

48

R. V8/1261-1307). Trepal claims that knowledge that the

sheriff’s office was discussing the possibility of a movie deal

could have been used to impeach law enforcement witnesses and to

support the defense that the sheriff’s office was in a "rush to

judgment" and may have planted the incriminating brown bottle in

Mr. Trepal’s garage. Clearly, the allegation that law

enforcement were aware of a possible movie deal is neither

exculpatory or material to Trepal’s case where, as here, there

are facts suggesting that any of the evidence against Trepal was

compromised. The improper influence, as alleged, does not cast

any doubt on Trepal’s convictions. Thus, no Brady violation can

be discerned on these facts.

Trepal has failed to identify any impropriety in the

investigation conducted by the Polk County Sheriff’s Office. On

these facts, he is not entitled to any relief in this issue.

49

Trepal also asserts that the court below should have granted

relief on his claim of juror misconduct. The court permitted

Trepal to explore any allegation of ineffective assistance of

counsel at the evidentiary hearing, but properly denied the

underlying substantive claim as procedurally barred. The denial

of this claim involved the application of legal principles to

the factual findings made below; this Court must review the

factual findings for competent, substantial evidence, paying

great deference to the trial court’s findings, and review of the

legal conclusions is de novo. Stephens v. State, 748 So. 2d

1028 (Fla. 1999); Guzman v. State, 721 So. 2d 1155, 1159 (Fla.

1998).

With regard to this claim, the lower court found:

(5) Claim #8 deals with the alleged jury

misconduct. A portion of the claim was

denied without a hearing. The court

permitted a hearing on the issue of possible

ineffective assistance of counsel for

failing to object to the alleged misconduct

because the record is not clear as to what

actually occurred. The motion for

postconviction relief makes several leaps in

logic, unsupported by any evidence, which

concern the court.

At the evidentiary hearing, Wofford and

Jonathan Stidham, and circuit court judge

Dennis Maloney all testified that they had

no recollection of the facts surrounding the

incident. It is impossible for the court to

determine if trial counsel was ineffective

50

if the lawyers and trial judge do not even

remember the event occurring. The defendant

has failed to satisfy his burden of proof as

to this issue. The defendant could have

subpoenaed the newspaper editor to testify.

More importantly, counsel could have

obtained a copy of the photograph referred

to on the record and used the photograph to

attempt to refresh the memories of the trial

attorneys and Judge Maloney.

(PCR. V20/3373). This ruling was correct. Where the record is

incomplete or unclear about counsel’s actions, counsel must be

afforded the presumption that he performed competently.

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Chandler v.

United States, 218 F.3d 1305, 1361 n.15 (11th Cir. 2000).

The trial record reflects that, at one point during the

trial, the judge advised the jury that he had received a call

from the news editor, and the editor was happy to supply copies

of the photo that appeared in the paper "recently" (DA-R.

V12/3201). The court asked the jury to refrain from visiting

the newspaper office and questioned jurors to insure that they

had not read news articles (DA-R. V12/3201).

Trepal asserts that these facts warrant relief. To the

extent that his claim is premised entirely on the trial

transcript, he is procedurally barred as this issue could have

been raised on direct appeal. No error is apparent, however,

since the court explored the facts and failed to uncover any

indication of juror misconduct. Rather, the record reflects

that the issue was explored to everyone’s satisfaction. The

51

fact that no jurors indicated that they had read the paper

refutes Trepal’s claim that the jury was improperly subjected to

outside influences. Trepal’s assertion that, "a number of

sitting jurors ... on an unidentified number of occasions" went

to the newspaper office is unfounded speculation which is not

supported by the record.

To the extent that Trepal alleges that he was denied a full

and fair hearing on this issue by the court’s refusal to permit

him to subpoena the trial jurors, his claim is without merit.

The court below properly found the substantive juror misconduct

claim to be procedurally barred. The judge acknowledged that,

should Trepal prevail in establishing that counsel’s performance

with regard to this incident was deficient, it might be

necessary for jurors to testify in order to discern the

potential prejudice. However, there was no basis for a finding

of deficient performance, and therefore any additional

information which the jurors could have provided on this issue

would not be relevant.

On these facts, no error has been demonstrated, and Trepal

is not entitled to any relief.

52

Trepal next asserts that his trial counsel was

unconstitutionally acting under a conflict of interest.

According to Trepal, the fact that his wife was paying his

attorney’s fees, coupled with the fact that his wife was also a

suspect, created an impermissible conflict of interest. The

court below denied this claim following the evidentiary hearing.

The denial of this claim involved the application of legal

principles to the factual findings made below; this Court must

review the factual findings for competent, substantial evidence,

paying great deference to the trial court’s findings, and review

of the legal conclusions is de novo. Stephens v. State, 748 So.

2d 1028 (Fla. 1999); Guzman v. State, 721 So. 2d 1155, 1159

(Fla. 1998).

With regard to this claim, the court below held:

(3) Claim #6 alleged trial counsel had

an actual conflict of interest that rendered

them ineffective. In support of the claim,

the defendant states that "[d]uring the

months leading up to the commencement of Mr.

Trepal’s trial in February of 1991, Diana

Carr (the wife of the defendant and a

suspect in the homicide) met and conferenced

with the various attorneys at Boswell,

Stidham, Conner & Wilson on numerous

occasions and discussed with them how the

case was proceeding and the strategies that

should be carried out in her husband’s

53

The portions of the trial transcript

listed by the defendant indicate that

counsel attempted to elicit potentially

incriminating evidence from Diana Carr. The

court sustained objections to the questions,

but allowed counsel to proffer the questions

and answers. The defendant has failed to

demonstrate how any conflict of interest

effected the lawyers’ ability to effectively

represent Mr. Trepal.

The defendant claimed that Diana Carr

met with her husband’s lawyers and discussed

how to try the case. Evidence presented at

the hearing clearly refuted this claim.

Wofford and Jonathan Stidham both testified

that Diana Carr did not meet with them to

discuss the case. Also, Jonathan Stidham

testified that after the firm sent Diana

Carr a second bill for legal services, she

became extremely upset and hostile.

Jonathan stated that he never had any

further contact with Diana Carr after that

incident.

The defendant also alleges that it was

ineffective assistance of counsel to fail to

inform the jury that Diana Carr was

testifying under immunity. Trial counsel

testified that they saw no need to elicit

this information from Diana Carr. Again,

counsel was bound by their client’s desire

not to implicate Diana Carr in any way.

Further, as noted previously, her testimony

was not damaging to the defense and the

tactical decision was made not to attempt to

impeach her. Part of the tactical decision

was based upon counsel’s opinion that if the

jury believed Diana Carr was involved in the

poisonings, the jury would also believe that

she could not have acted alone, and that the

defendant would have had to assist her.

(PCR. V20/3371-72).

The court below properly analyzed this claim, and the

conclusion that no actual conflict of interest was demonstrated

is supported by the record. Absent an actual conflict, no

54

relief is warranted. Cuyler v. Sullivan, 446 U.S. 335 (1980).

In Smith v. Massey, 235 F.3d 1259 (10th Cir. 2000), a similar

claim was considered and rejected. The defendant in that case

was charged with murder based on her actions in killing her

son’s former girlfriend. The son was also implicated and was

represented by the same counsel. In postconviction proceedings,

a conflict of interest argument much like that presented in this

case was raised. The court concluded that the attorney’s

performance was not altered by the potential conflict to the

extent that the outcome of the proceedings could have been

affected. The court noted that counsel’s performance with

regard to implicating the defendant’s son was dictated by the

defendant herself, who forbade her attorneys from pursuing this

theory.

Similarly, in the instant case, testimony at the evidentiary

hearing established that Trepal advised his attorneys not to

implicate his wife in any manner (PC-R. V13/2054-55). Thus, to

the extent Trepal now complains that his attorneys did not

thoroughly impeach Diana Carr or present a defense that she

committed these crimes, that was strategy dictated by Trepal

rather than by an actual conflict of interest.

No basis for relief has been offered on these facts. The

court below properly denied the attorney conflict of interest

claim, and its ruling on this issue must be affirmed.

55

56

Trepal also challenges the validity of his death sentence,

asserting that the court below erred in denying his claim of

penalty phase ineffective assistance of counsel. Trepal asserts

that his defense attorneys were deficient for failing to present

evidence to humanize their client and for failing to argue the

existence of lingering doubt as to guilt. Once again, the trial

court’s ruling was proper, and presents no basis for relief on

this issue.

This claim was denied following an evidentiary hearing. The

rejection of this claim involved the application of legal

principles to the factual findings made below; this Court must

review the factual findings for competent, substantial evidence,

paying great deference to the trial court’s findings, and review

of the legal conclusions is de novo. Stephens v. State, 748 So.

2d 1028 (Fla. 1999); Guzman v. State, 721 So. 2d 1155, 1159

(Fla. 1998).

The testimony presented at the evidentiary hearing clearly

established that Trepal’s defense attorneys made a reasoned,

strategic decision against presenting the "humanizing" evidence

which Trepal now insists should have been presented. The

court’s order denying this claim summarizes the testimony and

57

relevant findings:

(2) Claim #5 concerned the lack of

mitigation evidence presented at the

sentencing phase of the trial. This claim

alleged ineffective assistance of counsel

and the records did not refute the claim.

See, Deaton v. Dugger, 635 So. 2d 635 (Fla.

1994). Trial counsel claimed that the

failure to produce mitigation evidence was

strategic (R. 4369-70 and 4397-98), but the

court could not reach this conclusion

without conducting an evidentiary hearing.

After hearing the testimony at the hearing,

the court finds that the decision not to

present mitigation evidence was tactical and

reasonable under the circumstances. There

is no reasonable probability that the jury’s

recommendation would have been different had

the proposed evidence been presented.

The specific examples of evidence that

the defendant alleged should have been

introduced in the penalty phase are listed

below.

(a) CHARACTER EVIDENCE FROM MENSA

FRIENDS

At the evidentiary hearing, the

defendant called several MENSA members to

testify on behalf of Mr. Trepal. All the

witnesses basically testified that the

defendant was a nice, caring, intelligent,

thoughtful, generous and non-violent

individual. In cross-examination, the state

attorney asked all of the witnesses if they

knew that the defendant had been convicted

of a felony in the 1970's, that he spent

time in federal prison, that he and his wife

engaged in sado-masochistic practices, that

he had physically battered his wife, that

his wife had to flee to a neighbor’s house

because Mr. Trepal was being violent, and

that he had in his house a pornographic

video depicting an actual murder. Most of

these "bad acts" were referred to in a pretrial

motion in limine filed by the

defendant. (R. 4905) Many of the witnesses

did not know of these facts, and although

all stated that their opinion of Mr. Trepal

58

would not change, the impact on the jury

would have been potentially devastating to

the defense.

The trial attorneys testified that they

were aware of the state’s ‘bad character’

evidence and that it effected their decision

not to call any of the defendant’s MENSA

friends. The decision was obviously

tactical, and after hearing the testimony

and the state’s cross-examination, the court

finds that the decision was reasonable.

(b) ABILITY TO FORM CLOSE, LOVING

RELATIONSHIPS

This mitigator would appear to rely upon

much of the evidence from the defendant’s

family and MENSA friends. Once again, the

potential that negative evidence would reach

the jury effected counsel’s decision not to

introduce the evidence. The strategy was

reasonable and did not constitute

ineffective assistance of counsel.

(c) THE DEFENDANT WAS A MODEL PRISONER

No evidence was presented on this

ground. Therefore, the court does not know

if the defendant was a model prisoner. In

any event, the court finds that the decision

was not to present this type of mitigation

evidence, if it existed, was harmless.

(d) THE DEFENDANT HAS STRONG RELIGIOUS

BELIEFS

No evidence was presented on this

ground. Therefore, the court does not know

if the defendant has strong religious

beliefs. In any event, the court finds that

the decision not to present this type of

mitigation evidence, if it existed, was

harmless. Further, it is conceivable that

the state could have presented negative

character evidence to rebut the potential

mitigation evidence, so the decision appears

to be tactical.

(e) FAMILY HISTORY WAS NOT PRESENTED TO

JURY

Several of the defendant’s family

testified at the evidentiary hearing. The

court finds that the decision not to present

the family history and character evidence

from family members was harmless. Further,

59

it is conceivable that the state could have

presented negative character evidence in

rebuttal, so the decision appears to be

tactical.

A portion of this claim related to the

defendant being an intellectually "gifted"

child. An expert in gifted children

testified at the evidentiary hearing. The

state asked the expert numerous questions

about some of the defendant’s letters and

journal entries, which detailed criminal

experiences and other bad acts, that the

expert had relied upon formulating her

opinion. The material was extremely

damaging to the defendant. To open the door

to such evidence during the penalty phase

would have been a tremendous tactical

mistake. Further, the court doubts that a

jury who has convicted a man of one count of

first degree premeditated murder and six

counts of attempted first degree murder

would find that the defendant’s "giftedness"

mitigated the crime.

Another part of the claim related to the

defendant’s speech impediment. An expert

speech pathologist testified to the effects

of stuttering on a child. The court finds

that the decision not to present this type

of mitigation evidence was harmless.

(PCR. V20/3366-69). Thus, the court below concluded that the

decision not to present humanizing testimony in mitigation was

reasonable, noting that the negative evidence that could have

been generated as a result of producing such testimony could

have been "devastating."

Trepal now claims that the court erred by simply accepting,

without any meaningful analysis, trial counsels’

characterization of the failure to present this evidence as

strategy, and that the court’s reliance on the negative

60

testimony that would be available to counter the humanizing

evidence was improper because the defense attorneys did not know

about the negative evidence, so it could not have been part of

any trial tactics. He also asserts that, to the extent any

strategic decision was made to avoid negative testimony, it was

unreasonable because the jury had already convicted Trepal of

criminal acts. These claims are all easily rebutted by the

record and do not provide any basis for relief on this issue.

As to the claim that the court below simply accepted

counsel’s statements that this was strategic, Trepal’s assertion

is refuted by the fact that the court held an evidentiary

hearing. In this case, the trial transcript itself reflected

that counsel asserted they were making a strategic decision not

to present mitigating evidence (DA-R. V18/4369-70, 4397-98).

The court below noted these representations, but determined that

it could not reach that conclusion without an evidentiary

hearing (PC-R. V11/1838). As well, Trepal’s assertion that the

defense attorneys did not know about the negative testimony that

would be presented had they chosen to elicit the humanizing

testimony is directly refuted by the testimony from the

evidentiary hearing that the attorneys were aware of the State’s

bad character evidence and that it effected their decision not

to present character evidence in mitigation. Wofford Stidham

testified directly:

61

I recall we discussed this a long time. One

of the options was to put on some of Mr.

Trepal’s friends to testify as to what a

gentle person he was and that he wasn’t

capable of these bad things. I mean, that’s

the gist of what we talked about. Because

he had friends from his Mensa days, and a

good many people would come in and support

him.

The trouble was, as I recall, and you

better -- you have to rely on the other two

lawyers if it comes down to a conflict, but

one of the troubles was that we had this

mountain of excluded evidence on prior bad

acts that the State had accumulated, and

most of it had been kept out on motions in

limine and motions to suppress and -- but

there was so much of it, as I remember, we

thought if we go into that, Aguero’s going

to have about a five-day field day now using

these things not to prove guilt, but to

prove -- show that -- to rebut the character

issue.

And that was one of the things that,

rightly or wrongly, that we talked about,

and I remember that.

(PC-R. V12/2033-34). Counsel’s knowledge of some bad character

evidence is also evident from the motion in limine filed prior

to trial (DA-R. V21/4905). Finally, Trepal’s assertion that any

strategic decision on these facts was unreasonable is obviously

just a disagreement over trial strategy, insufficient for a

finding of ineffective assistance of counsel or the granting of

postconviction relief.

Case law establishes that no ineffectiveness of counsel is

evident on these facts. Trepal’s claim and the testimony from

the postconviction hearing establish only that his current

62

counsel disagree with trial counsel’s strategic decision on this

issue. This is not the standard to be considered. Rutherford

v. State, 727 So. 2d 216, 223 (Fla. 1998) ("Strategic decisions

do not constitute ineffective assistance if alternative courses

of action have been considered and rejected"); Rose, 675 So. 2d

at 570 (affirming denial of postconviction relief on

ineffectiveness claim where claims "constitute claims of

disagreement with trial counsel’s choices as to strategy");

Cherry v. State, 659 So. 2d 1069, 1073 (Fla. 1995) (noting

"standard is not how present counsel would have proceeded, i