i

This proceeding involves the appeal of the circuit

court’s denial of Mr. Floyd’s motion for postconviction

relief. The motion was brought pursuant to Fla. R. Crim. P.

3.850. The circuit court denied Mr. Floyd’s claims after an

evidentiary hearing.

The following abbreviations will be utilized to cite to

the record in this cause, with appropriate volume and page

number(s) following the abbreviation:

"R." – record on direct appeal to this

Court;

"RS." - record on appeal after the second sentencing;

"PC-R1." - record on appeal after postconviction summary

denial;

"PC-R." – record on appeal after an evidentiary hearing;

"PC-S." - supplemental record on appeal after an

evidentiary hearing.

"D-Ex." - Defense exhibits entered at the evidentiary

hearing and made part of the

postconviction record on appeal.

Mr. Floyd has been sentenced to death. This Court has

not hesitated to allow oral argument in other capital cases in

a similar procedural posture. A full opportunity to air the

issues through oral argument would be more than appropriate in

this case, given the seriousness of the claims involved. Mr.

ii

Floyd, through counsel, urges that the Court permit oral

argument.

iii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 5

THE TRIAL . . . . . . . . . . . . . . . . . . . . . . . . 5

THE RESENTENCING . . . . . . . . . . . . . . . . . . . . 7

THE POSTCONVICTION EVIDENTIARY HEARING . . . . . . . . . 8

PART I-MENTAL RETARDATION . . . . . . . . . . . . . 8

PART II REMANDED CLAIMS . . . . . . . . . . . . . . 24

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 43

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . 44

ARGUMENT I

THE TRIAL COURT ERRED IN DENYING MR. FLOYD’S

CLAIM THAT HE WAS DEPRIVED OF HIS RIGHTS TO DUE

PROCESS WHEN THE STATE WITHHELD EVIDENCE WHICH

WAS MATERIAL AND EXCULPATORY IN NATURE AND/OR

PRESENTED FALSE OR MISLEADING EVIDENCE . . . . . . . . 45

I. The Undisclosed Exculpatory Evidence . . . . . . 45

A. The Legal Standard . . . . . . . . . . . . . 45

B. The Undisclosed Police Reports . . . . . . . 47

1. The Tina Glenn Reports . . . . . . . . 47

2. Crime Scene Investigation . . . . . . . 50

C. Undisclosed State Attorney Investigative

Reports . . . . . . . . . . . . . . . . . . 52

iv

D. Undisclosed Gregory Anderson Letters . . . . 55

E. The Undisclosed Exculpatory Evidence

Undermines Confidence in the Outcome . . . . 57

II. The Presentation of False and/or Misleading

Evidence Claim . . . . . . . . . . . . . . . . . 60

A. The Legal Standard . . . . . . . . . . . . . 60

B. At Mr. Floyd’s Trial, Uncorrected

False and/or Misleading Testimony . . . . . 61

ARGUMENT II

THE TRIAL COURT ERRED IN DENYING MR. FLOYDS’

CLAIM THAT HE WAS DEPRIVED OF HIS

CONSTITUTIONALLY GUARANTEED RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT

PHASE OF HIS CAPITAL TRIAL . . . . . . . . . . . . . . 66

ARGUMENT III

MR. FLOYD RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL AT THE PENALTY PHASE OF HIS CAPITAL

TRIAL . . . . . . . . . . . . . . . . . . . . . . . . 68

A. Introduction . . . . . . . . . . . . . . . . . . 68

B. Deficient Performance . . . . . . . . . . . . . . 69

C. Prejudice . . . . . . . . . . . . . . . . . . . . 74

ARGUMENT IV

THE TRIAL COURT ERRED IN DENYING MR. FLOYD’S

CLAIM THAT, BECAUSE OF HIS MENTAL RETARDATION,

HIS DEATH SENTENCE VIOLATES THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES’

CONSTITUTION AS WELL AS THE CORRESPONDING

PROVISIONS OF THE FLORIDA CONSTITUTION . . . . . . . . 76

A. JURY TRIAL . . . . . . . . . . . . . . . . . . . 77

B. IMPROPRIETY OF THE PROCEEDINGS . . . . . . . . . 78

1. SELECTION OF EXPERTS . . . . . . . . . . . . 78

2. LACK OF STANDARDS . . . . . . . . . . . . . 79

v

C. THE LOWER COURT’S ORDER . . . . . . . . . . . . . 82

D. CONCLUSION . . . . . . . . . . . . . . . . . . . . 96

ARGUMENT V

THE LOWER COURT ERRED IN REFUSING TO RECUSE

ITSELF FROM THE POSTCONVICTION PROCEEDINGS . . . . . . 97

ARGUMENT VI

MR. FLOYD’S CONVICTION AND SENTENCE ARE

UNCONSTITUTIONAL UNDER RING V. ARIZONA . . . . . . . . 99

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 100

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 101

CERTIFICATE OF FONT . . . . . . . . . . . . . . . . . . . 101

vi

Alcorta v. Texas,

355 U.S. 28 (1957) . . . . . . . . . . . . . . . . . . 61

Atkins v. Virginia,

122 S. Ct. 2242 (2002) . . . . . . . . . . . . . . 78, 96

Bedami v. State,

112 So.2d 284 (Fla. 2d DCA 1959) . . . . . . . . . . . 40

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . 45

Cardona v. State,

826 So.2d 968 (Fla. 2002) . . . . . . . . . . . . 46, 60

Crooks v. State,

813 So. 2d 68 (Fla. 2002) . . . . . . . . . . . . . . 81

Floyd v. State,

497 So. 2d 1211 (Fla. 1986) . . . . . . . . . . . . . 1

Floyd v. State,

569 So. 2d 1225 (Fla. 1990) . . . . . . . . . 2, 73, 74

Floyd v. State,

808 So. 2d 175 (Fla. 2002) . . . . . . . . . . . . . . 3

Floyd v. State,

839 So. 2d 698 (Fla. 2003) . . . . . . . . . . . . . . 5

Floyd v. State,

Case NO SC02-2295 (October 28, 2002) . . . . . . . . . 4

Floyd v. State,

Case NO SC03-2 (February 13, 2003) . . . . . . . . . . 5

Floyd, Et Al. v. Charles J. Crist, Jr., Etc., Et Al,

Case NO SC02-2295 (March 14, 2003) . . . . . . . . . . 4

Ford v. Wainright,

477 U.S. 399 (1986) . . . . . . . . . . . . . . . . . 78

Garcia v. State,

622 So. 2d 1325 (Fla. 1993) . . . . . . . . . . . . . 46

Giglio v. United States,

405 U.S. 150 (1972) . . . . . . . . . . . . . . . . . 60

vii

Gray v. Netherland,

518 U.S. 152 (1996) . . . . . . . . . . . . . 60, 63, 66

Guzman v. State,

28 Fla. L. Weekly S829 (Fla. 2003) . . . . . . . . . . 66

Hildwin v. Dugger,

654 So. 2d 107 (Fla. 1995) . . . . . . . . . . . . . . 69

Hoffman v. State,

800 So.2d 174 (Fla. 2001) . . . . . . . . . . . . 46, 60

Imperato v. Spicola,

238 So.2d 503 (Fla. 2d DCA 1970) . . . . . . . . . . . 40

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . . 46, 61

Lightbourne v. State,

742 So. 238 (Fla. 1999) . . . . . . . . . . . . . . . 59

Mooney v. Holohan,

294 U.S. 103 (1935) . . . . . . . . . . . . . . . 60, 63

Murphy v. State,

54 P. 3d 556 (Okla. Crim. App. 2002) . . . . . . . . . 78

Napue v. Illinois,

360 U.S. 264 (1959) . . . . . . . . . . . . . . . . . 61

Occhicone v. State,

768 So.2d 1037 (Fla. 2000) . . . . . . . . . . . . . . 58

Ornelas v. U.S.,

517 U.S. 690, 116 S.Ct. 1657,

134 L.Ed.2d 911 (1996) . . . . . . . . . . . . . . . . 45

Ragsdale v. State,

798 So. 2d (Fla. 2001) . . . . . . . . . . . . . . . . 76

Ring v. Arizona,

122 S. Ct. 2428 (2002) . . . . . . . . . . . . . . 77, 99

Rogers v. State,

630 So. 2d 513 (Fla 1993) . . . . . . . . . . . . . . 99

Rogers v. State,

782 So.2d 373 (Fla. 2001) . . . . . . . . . . . . 46, 60

Rose v. State,

675 So. 2d 567 (Fla. 1996) . . . . . . . . . . . . . . 69

viii

Smith v. Wainwright,

799 F.2d 1442 (11th Cir. 1986) . . . . . . . . . . . . 67

Starr v. Lockhart,

cert. denied, 115 S. Ct. 499 (1994) . . . . . . . . . 71

State v. Gunsby,

670 So.2d 920 (Fla. 1996) . . . . . . . . . . 46, 59, 67

State v. Huggins,

788 So.2d 238 (Fla. 2001) . . . . . . . . . . . . 46, 60

Stephens v. State,

748 So.2d 1028 (Fla. 1999) . . . . . . . . . . . . . . 45

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . 66

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . 68

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . . . 45, 59

Suarez v. Dugger,

527 So. 2d 190 (Fla. 1988) . . . . . . . . . . . . . . 99

United States v. Bagley,

473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . 45

United States v. Cronic,

466 U.S. 648 (1984) . . . . . . . . . . . . . . . . . 67

United States v. Henry,

447 U.S. 264 (1980) . . . . . . . . . . . . . . . . . 55

Vogel v. Gruaz,

110 U.S. 311, 5 S.Ct. 12 (1884) . . . . . . . . . . . 40

Way v. State,

760 So.2d 903 (Fla. 2000) . . . . . . . . . . . . . . 58

Wiggins v. Smith,

123 S.Ct. 2527 (2003) . . . . . . . . . . . . . . . . 68

Williams v. Taylor,

120 S.Ct. 1495 (2000) . . . . . . . . . . . . . . . . 68

Young v. State,

739 So. 2d 553 (Fla. 1999) . . . . . . . . . . . . . . 46

1

On March 6, 1984, Mr. Floyd was charged by indictment

with one count of first-degree murder and related offenses (R.

6-7). He pled not guilty. After a jury trial, Mr. Floyd was

found guilty on August 23, 1984 (R. 883-885). The jury

recommended death by a vote of seven (7) to five (5).

On August 27, 1984, the trial court imposed a sentence of

death on the count of first-degree murder and consecutive

sentences of five years imprisonment on each of the nine

related counts (R. 950-951).

On direct appeal, the Florida Supreme Court affirmed Mr.

Floyd’s convictions, but overturned his sentence of death

because: (a) the trial court improperly found the cold,

calculated and premeditated aggravating factor; (b) the trial

court improperly found the murder to prevent arrest

aggravating factor; and (c) the trial court failed to instruct

the jury adequately about non-statutory mitigating factors.

Floyd v. State, 497 So. 2d 1211 (Fla. 1986).

Mr. Floyd’s second sentencing hearing was held on January

12-14, 1988 before Circuit Court Judge Richard A. Luce. On

January 14, 1988, the jury by a vote of eight (8) to four (4)

returned an advisory recommendation of death (RS. 1039).

On February 29, 1988, the trial court imposed a sentence

of death, stating that his personal belief was that the

Florida Supreme Court incorrectly prevented him from doubling

aggravators (RS. 1066); the Florida Supreme Court was

committed for financial gain and it was heinous, atrocious and

cruel (RS. 332-337).

2

incorrect in specifically finding that the murder to prevent

arrest aggravating factor was not present in this case (RS.

1066); and that the Florida Supreme Court was incorrect in

finding that the cold, calculated and premeditated aggravating

factor was not present in this case (RS. 1068-1069). The

trial judge said he would ignore these aggravating factors,

notwithstanding his personal opinions. The trial court found

non-statutory (R. 1072). The Florida Supreme Court affirmed

Mr. Floyd’s second sentence of death, Floyd v. State, 569 So.

2d 1225 (Fla. 1990).

Mr. Floyd’s initial Fla. R. Crim. P. 3.850 motion was

filed on August 17, 1992. Amended motions were filed August

1, 1994, April 9, 1998 and November 13, 1998. On July 21,

1999, the court issued an order summarily denying Mr. Floyd an

evidentiary hearing on all of his claims. On August 2, 1999,

counsel for Mr. Floyd filed a motion to set aside and/or

relief. Mr. Floyd also filed a Motion to Disqualify Judge

based on the improper conduct of the State and the judge. The

trial court denied all of Mr. Floyd’s motions (PC-R1. 935).

Mr. Floyd filed a Notice of Appeal (PC-R1. 937).

amended motion relating to mental retardation (PC-R. 99). The second

hearing would related to claims remanded by the Florida Supreme Court

(PC-R. 100).

3

While the case was pending in the Florida Supreme Court,

Florida Governor Bush signed into law a statute that prohibits

the execution of the mentally retarded, Fla. Stat. Sec.

921.137. Mr. Floyd filed a motion in the Florida Supreme

Court seeking to brief the issue as it pertained to Mr.

Floyd’s case.

On January 17, 2002, the Florida Supreme Court ordered

that Mr. Floyd was entitled to an evidentiary hearing on trial

counsel’s effectiveness at both the guilt and penalty phases

of his trial and on his Brady claim. Floyd v. State, 808 So.

2d 175 (Fla. 2002). The Court denied the motion to file

supplemental briefing on the mental retardation claim without

prejudice to file the claim in the trial court on remand.

Floyd v. State, 808 So. 2d 175 (Fla. 2002).

Following the remand, on April 15, 2002, Mr. Floyd filed

an Amended 3.850 motion. This motion pertained to mental

retardation issues as well as a Ring claim. A Huff hearing

was conducted on July 12, 2002 (PC-S. 235). On July 17, 2002,

the circuit court issued a Case Management Order, which

On October 21, 2002, Mr. Floyd filed in the circuit court

a Motion to Stay Proceedings Pending Adoption of Rules of

Procedure by the Florida Supreme Court in relation to mental

March 14, 2003, this Court issued an order denying Appellant’s

amended petition seeking to invoke the Court’s all writs

jurisdiction. Floyd, Et Al. v. Charles J. Crist, Jr., Etc., Et Al,

Case NO SC02-2295 (March 14, 2003).

State, Case NO SC02-2295 (October 28, 2002).

additional claims remanded by this Court following a

postconviction appeal.

4

retardation determinations (PC-R. 1681). The motion was

denied on October 23, 2002 (PC-R. 1696). Subsequently, on

October 23, 2002, Mr. Floyd filed in the Florida Supreme Court

a Petition Seeking to Invoke this Court’s All Writs

On October 28-29, 2002, an evidentiary hearing was held

in the circuit court regarding Mr. Floyd’s claim that he was

mentally retarded (PC-R. 1724). During the hearing, Mr. Floyd

Merin (PC-S. 7-25). The court denied the motion (PC-S. 26-7).

Following an Order by the circuit court finding that Mr.

Floyd was not mentally retarded (PC-R. 2118-2131), on December

31, 2002, Mr. Floyd filed a Notice of Appeal (PC-R. 2133). On

January 21, 2003, the State moved to dismiss the

aforementioned appeal on the basis that the Order was an

interlocutory ruling, as the postconviction proceedings had

a Motion to Consolidate as well as a Motion to Stay

5

Proceedings in the Florida Supreme Court, until after oral

arguments were heard in the case of Burns v. State, Case No.

SC01-166, an argument which concerned mental retardation.

On February 13, 2003, the Florida Supreme Court granted

the State’s motion to dismiss without prejudice to raise the

claim again upon completion of the circuit court

postconviction proceedings. Floyd v. State, 839 So. 2d 698

(Fla. 2003) On that same day, the Court denied the Motion to

Consolidate. Floyd v. State, Case NO SC03-2 (February 13,

2003).

On February 19-20, 2003, the circuit court held an

evidentiary hearing on Mr. Floyd’s remanded claims, which

included Brady and ineffective assistance of counsel issues.

On May 1, 2003, the lower court issued an order denying

relief. This appeal follows.

(R. 827)(Excerpt from prosecutor’s closing argument)(emphasis

added). Mr. Floyd’s conviction did not rest on any physical

evidence from the crime scene. Mr. Floyd’s conviction was not

secured through eye witness testimony placing him at the

victim’s residence at any time, much less the time of the

murder. Mr. Floyd’s conviction rested on suggestive and

circumstantial evidence.

6

There was testimony that motorcycle tire marks by the

victim’s house were similar in tread design to the ones on Mr.

Floyd’s motorcycle (R. 673-82). However, it was acknowledged

that the tread design was a quite common one found on Japanese

motorcycle street bikes (R. 680). There was testimony that

Negroid hair fragments were found on the bed spread, bed

sheets and sweater of the victim (R. 701-3). Other than the

fact that Mr. Floyd is an African American, no evidence was

presented that these hairs belonged to him or, even more

tellingly, that these hairs were even similar in nature to Mr.

Floyd’s hairs.

There was testimony that an old business card from

Suncoast Lawn Service was discovered in the victim’s

belongings, with the owner of the Service being listed as

Johnnie Floyd (R. 555, 559). The names "James" was

handwritten in the upper right corner of the card (R. 1002).

The victim’s daughter identified the handwriting as her

father’s, and she testified that he had been dead for at least

eight years (R. 561-2). She was not aware of anyone from

Suncoast Lawn Service having done work for her mother (R.

559). There was simply no evidence that Mr. Floyd had ever

been in the victim’s residence.

There was additional testimony that, following Mr.

Floyd’s arrest, a sock with a brown substance on it was found

in Mr. Floyd’s jacket (R. 514-15). Testing on the sock

indicated that it was the same blood type as the victim, type

infra, the fact that he couldn’t accurately recall his

whereabouts over a three day period should hardly be

surprising.

7

O (R. 687-8). No evidence was presented that this was the

victim’s blood.

There was testimony from a jailhouse snitch, Gregory

Anderson, that Mr. Floyd admitted to the stabbing of a white

woman (R. 731-2). Following the postconviction evidentiary

hearing, the trial court found that the defense attorney had

"proceeded to quite effectively discredit Anderson by

questioning him concerning his letter writing to Judge Walker

(the judge assigned to Anderson’s case at the time), his prior

involvement as a ‘snitch’ in other cases, and his apparent

favorable treatment in prior cases." (PC-R. 2162). There was

also testimony that Mr. Floyd gave inconsistent stories to

police about his whereabouts during a three day period

The only physical evidence connecting Mr. Floyd to any

crime was the victim’s checkbook in Mr. Floyd’s possession (R.

498-9), along with the forged checks. The Defense never

contested these facts, or that Mr. Floyd committed forgery (R.

390-1, 520-1). The Defense maintained that Mr. Floyd found

the victim’s checkbook in a dumpster (R. 390-1).

Mr. Floyd’s penalty phase defense consisted of seven lay

witnesses whose cumulative testimony consisted of the facts

8

that Mr. Floyd’s mother was an alcoholic (RS. 850, 857, 872

904); that Mr. Floyd was affected by it (RS. 873, 904); that

Mr. Floyd worked for his father and was a good worker (RS.

849-50, 855, 874, 902); that his father died in 1983 from

cancer (RS. 909); and that Mr. Floyd was not known to be

violent (RS. 852, 856, 905, 912). There was also testimony

that about six months before the homicide, Mr. Floyd began to

have mood swings, would be in a big depression, was almost

manic, and perhaps was on drugs (RS. 859, 863-4); and that Mr.

Floyd began missing work and was suspected of stealing things

(RS. 860-3).

During the presentation of its case, the Defense elicited

testimony from a witness, Thomas Snell, that he never knew of

Mr. Floyd to be in any kind of trouble (RS. 873). As a result

of this questioning, the court found that "the defense has

opened the door and that the State, if they so desire, may

inquire as to knowledge regarding other criminal actions and

whether that would change that opinion." (RS. 892).

As a result, the State was permitted to ask the witness

whether he was aware of the fact that Mr. Floyd was convicted

of a prior petit theft, two grand thefts, a burglary and a

failure to appear (RS. 894). Further, the State was permitted

to introduce the judgments and sentences as to each of these

offenses into evidence (RS. 935-7, 942). In sentencing Mr.

Floyd to death, the court found no mitigating factors (RS.

1072).

July 29, 2002, the court issued an Order Appointing Mental

Retardation Experts (PC-R. 105-6). In its order, the Court appointed

two experts from the State’s list, Dr. Merin and Dr. Gamache, and one

expert from the defense list, Dr. Toomer. Dr. Keyes, not a courtappointed

expert, was called as a defense witness (PC-S. 1).

expert (PC-R. 1739). Dr. Merin testified that he needed the

raw data from this test because it was a more comprehensive

test (PC-R. 1773).

9

Four expert witnesses were called to testify during this

portion of the evidentiary hearing: Dr. Merin, Dr. Toomer, Dr.

Dr. Merin testified that he "probably" was a mental

retardation expert (PC-R. 1774). Dr. Merin didn’t know how

much of his practice has dealt with mental retardation. He

has never written any articles, nor has he done any research

on mental retardation (PC-R. 1774-5). However, in 1956, Dr.

Merin did write a doctoral dissertation involving how children

with different levels of intelligence would respond or could

be predicted to behave under certain circumstances (PC-R.

1775). Dr. Merin was of the opinion that research has not

changed much on mental retardation since 1956. Id.

Dr. Merin testified that he reviewed four volumes of

records compiled by the defense as well as the raw data from

10

for one and a half hours in the morning and a portion of the

afternoon (PC-R. 1739-40).

Dr. Merin did not believe that Mr. Floyd was malingering

during the testing, but he did "consider in my finding or I

did indicate that his general personality or there was a lack

of motivation or depression present." (PC-R. 1744). With

regard to the testing, Dr. Merin took a history and observed

Mr. Floyd clinically (PC-R. 1738-9; 1746). Mr. Floyd was

given a Beta-III examination, a WAIS, a Paradigm, a vocabulary

test, a sentence completion test and the Stroup test (PC-R.

1746-8). Dr. Merin also gave a test relating to brain damage

(PC-R. 1774).

Mr. Floyd scored a 70 on the Beta exam (PC-R. 1786). Dr.

Merin didn’t recall that the Department of Corrections had

also given Mr. Floyd a Beta in 1981 (PC-R. 1786). After being

shown the background materials he had received, which showed a

Beta score of less than 60, Dr. Merin proclaimed that this was

a different Beta (PC-R. 1786). Dr. Merin then attributed the

change in score to an upgrade in the demographics, along with

a reformation of the test (PC-R. 1789).

In performing his evaluation, Dr. Merin relied heavily on

the DSM-IV rather than the statute, although there was no

reference by the court to use it (PC-R. 1770-1). Dr. Merin

determined that Mr. Floyd’s verbal IQ was 75, which would

place him in the borderline range (PC-R. 1750). Mr. Floyd’s

non-verbal IQ was also 75 (PC-R. 1751). His full scale was 73

the test: "I don’t think he knew this stuff. Where he performed

well, he could. On this test, where he performed poorly, I don’t

think he could perform it any better." (PC-R. 1753).

he wrote lots of letters while he was in the Pinellas County Jail and

that Mr. Floyd asked him to write letters on his behalf because "I

believe that my opinion is that he thought I could write them

better." (R. 750). Despite such testimony from a State witness, the

prosecutor at Mr. Floyd’s evidentiary hearing repeatedly asked the

court-appointed experts if Mr. Floyd could write letters and what it

meant for his adaptive skills. Yet, the State never authenticated

the letters or proved that Mr. Floyd wrote them.

difference if he had known that Mr. Floyd was told by his

defense counsel not to talk about the offense (PC-R. 1799).

11

(PC-R. 1769), which would make it a score of sixty-eight to

with letters that were purportedly written by Mr. Floyd, he

thought that the letters reflected a higher level of

intelligence than one would expect, given Mr. Floyd’s IQ

Dr. Merin found that Mr. Floyd had adaptive capabilities

in the areas of vocabulary and word usage (PC-R. 1761); the

fact that Mr Floyd wouldn’t discuss the events surrounding his

father and not the murder, because statements about his father

might be helpful to him (PC-R. 1761-2); that Mr. Floyd

provided for his children (PC-R. 1762); that he had friends

prior to his present incarceration and made one or two friends

in prison (PC-R. 1763); that, outside of prison, he would play

sports or do nothing (PC-R. 1763); that he did not frequent

as severe as the Halstead indicated (PC-R. 1808).

12

bars or lounges (PC-R. 1763); that he worked for his father

(PC-R. 1763); that he did odd jobs (PC-R. 1763); and that he

was a custodian (PC-R. 1763).

Dr. Merin didn’t speak to any family members, employers,

co-workers or prison officials (PC-R. 1796-7). He spoke only

to Mr. Floyd (PC-R. 1797). Dr. Merin didn’t confirm whether

anything Mr. Floyd told him was true (PC-R. 1797). He didn’t

know whether Mr. Floyd could hold down a job or whether he

gave money to his family (PC-R. 1797). Dr. Merin didn’t know

what Mr. Floyd’s job performance was or whether he was able to

care for himself (PC-R. 1797-8). Dr. Merin thought it was odd

that Mr. Floyd didn’t want to talk about sexual abuse (PC-R.

1801).

Dr. Merin acknowledged that Mr. Floyd had difficulty with

mental flexibility (PC-R. 1808), that he couldn’t shift mental

During cross-examination by the defense, it was pointed

out to Dr. Merin that, on direct examination, in discussing

his diagnostic features, he never mentioned an onset before

age eighteen (PC-R. 1772). Dr. Merin also acknowledged that

he never mentioned this anywhere in his report. Id. Dr.

Merin conceded that the Children’s Wechsler Test contained in

Mr. Floyd’s school records, which indicated an IQ in the

fifties, would be an indication that Mr. Floyd had been

the Wechsler Adult Stage were administered (PC-R. 1829). Due to the

level of impairment, Dr. Toomer was unable to administer this test

and instead utilized a revised Beta exam (PC-R. 1830). The Beta IQ

was less than 60. Id. The score was consistent with the test that

was conducted by the prison upon Mr. Floyd’s entry there. Id.

13

retarded before the age of eighteen (PC-R. 1790-1). However,

Dr. Merin did not think it was necessary to put this in his

report because it happened thirty years ago (PC-R. 1791).

With regard to Mr. Floyd’s school records, Dr. Merin did not

place a great deal of emphasis on them because "We don’t know

the reasons for those scores." (PC-R. 1792).

Dr. Toomer testified that his specialty is in the area of

clinical forensic psychology (PC-R. 1822). Dr. Toomer was

originally contacted in this case by collateral counsel in

1992 to perform a complete psychological evaluation of Mr.

Floyd (PC-R. 1825). The evaluation consisted of a clinical

interview, as well as an assessment of mental functioning (PCR.

reviewed in 1992, he found Mr. Floyd to be mentally retarded

(PC-R. 1830).

More recently, Dr. Toomer had been appointed by the court

to render an opinion as to whether Mr. Floyd is mentally

retarded (PC-R. 1826). In comparison to his evaluation in

1992, Dr. Toomer noticed some improvement in Mr. Floyd’s

overall demeanor and some increase in fluency (PC-R. 1831).

Dr. Toomer attributed this change to the fact that Mr. Floyd

was in a highly structured environment. Id.

In his evaluations in 1992 and 2002, Dr. Toomer found no evidence of

malingering(PC-R. 1836).

14

With regard to intellectual functioning, Mr. Floyd’s IQ

examine other aspects of Mr. Floyd’s overall functioning (PCR.

1833). He assessed Mr. Floyd’s academic skills; he gave

Mr. Floyd the Bender test, to determine whether there might be

any underlying neurological involvement; and he then attempted

to gather data relating to overall adaptive functioning. Id.

Dr. Toomer did this mainly by examining past records which

described Mr. Floyd’s functioning, both from an educational

and a psycho-social perspective. Id. Dr. Toomer also relied

on what Mr. Floyd told him, but it would have compromised the

integrity of the testing process to rely solely on this

information (PC-R. 1835-6).

With regard to the records, Dr. Toomer found a number of

factors that were critical in terms of providing information

regarding adaptive functioning (PC-R. 1834). In assessing

developmental factors in the family history, Dr. Toomer noted

that Mr. Floyd’s mother suffered from alcoholism and that

there were other variables that impacted on functioning (PC-R.

1834). There were also school records supplemented by

narrative remarks and testing from the Wechsler test from when

Mr. Floyd was fifteen (PC-R. 1834-5). Dr. Toomer believed

that these records were critical, as they provided a picture

15

of intellectual functioning prior to age eighteen (PC-R.

1835). Mr. Floyd had deficits in all areas. Id.

With regard to other adaptive skills, Dr. Toomer

explained

that the fact that Mr. Floyd was a dishwasher or custodian did

not signal that he was not mentally retarded (PC-R. 1860-1).

Rather, these are basically redundant tasks that do not

require abstract functioning to complete (PC-R. 1861).

Mentally retarded individuals can handle such tasks (PC-R.

1861-2).

Mr. Floyd’s inability to hold a job as a janitor or

dishwasher was indicative of poor adaptive skills (PC-R. 1869-

70). Other indications of poor adaptive functioning included

the areas of interaction with Mr. Floyd’s peers, his deficit

functioning in school and employment as well as self-direction

(PC-R. 1865).

Dr. Toomer concluded that Mr. Floyd is mentally retarded

(PC-R. 1839). Based upon a reasonable degree of psychological

certainty, Mr. Floyd has significant subaverage intellectual

function with deficits in adaptive behavior, which manifested

during the period of birth to age eighteen. Id.

Dr. Gamache is a clinical psychologist who was appointed

by the court to conduct a mental retardation evaluation of Mr.

Floyd (PC-R. 1876, 1878). When asked about any research he

had done relating to mental retardation, Dr. Gamache pointed

to a publication from 1991, which dealt with a group of

half with Mr. Floyd (PC-R. 1886).

16

subjects with thyroid or hormone syndromes (PC-R. 1897). None

of the other six papers listed on his CV had anything to

specifically do with mental retardation (PC-R. 1909).

Although Dr. Gamache claimed to have written publications and

done other work directly relating to mental retardation, there

is no mention of it on his CV (PC-R. 1898). Dr. Gamache’s

explanation for this omission was that, "I try to keep my CV

as concise as possible. I don’t put every single detail on

there." (PC-R. 1898). Dr. Gamache’s thesis, nor his masters

thesis, had anything to do with mental retardation (PC-R.

1902).

Dr. Gamache performed the Kaufman Intelligence test

because he is very familiar with it (PC-R. 1926). According

to Dr. Gamache, he didn’t use the Stanford-Binet because it is

a less valid and less reliable instrument Id.

During his examination, Dr. Gamache asked Mr. Floyd a

total of five questions before beginning the testing (PC-R.

He asked Mr. Floyd what grade he completed, when his birthday

was, what the date was, how old he was, and could he read or

write (PC-R. 1924-5). According to Dr. Gamache, this was all

that was necessary to conduct the test (PC-R. 1925). Dr.

Gamache did not do a clinical interview. Id. Had he been

asked to do one, he would have talked with Mr. Floyd. Id.

17

Interviews are not necessarily part of his evaluation for

Dr. Gamache stated that Mr. Floyd’s I.Q. score fell into

the borderline intellectual function category, which includes

scores in the range of seventy to seventy-nine (PC-R. 1892).

Dr. Gamache theorized that Mr. Floyd would have a reason to

malinger, to spare his life (PC-R. 1881). Dr. Gamache did not

give Mr. Floyd any tests to determine if he was malingering

(PC-R. 1941), nor did he offer the opinion that Mr. Floyd was

malingering (PC-R. 1941, 1949).

With regard to adaptive behavior, Dr. Gamache obtained

this information mostly from the records provided by defense

counsel (PC-R. 1887). Dr. Gamache felt like the material did

not suggest any marked impairment in multiple adaptive

function. Id. While in prison, Mr. Floyd exercised, and he

spent significant time reading, doing correspondence and

watching t.v. Id. These went to the adaptive domains of

health and leisure and self-direction, as well as perhaps

communication and home living. Id. Also, there was no

evidence that Mr. Floyd needed any help taking a shower (PC-R.

1888).

Dr. Gamache was also shown letters purportedly written by

Mr. Floyd (PC-R. 1889). Dr Gamache stated that, "One could

certainly argue that those letters would reflect, at a

minimum, adequate communication skills and the ability to

formulate these thoughts and ideas; the desire to communicate

school records, Dr. Gamache stated that the diagnosis of mental

retardation is not based solely on test results (PC-R. 1930). "If

one happens to have a formal intelligence test or IQ score of fiftyfive,

that would be a first step. It certainly suggests that you

need to look at adaptive behaviors to determine whether somebody

18

with others, and the actual functional success of

communicating with others." (PC-R. 1890). Dr. Gamache was not

aware that in 1984, a witness testified that he wrote letters

for Mr. Floyd (PC-R. 1896).

In rendering his opinion, Dr. Gamache considered the DSM

criteria as well as those contained in the Florida statutes,

particularly 921.137 (PC-R. 1893). Dr. Gamache noted that the

statute "goes on to talk about adaptive behavior, as well, but

the bottom line is that in terms of my administration and

assessment and scoring of Mr. Floyd’s intellectual ability,

he’s not more than two standard deviations below the mean"

(PC-R. 1894).

Dr. Gamache does not have his own definition for mental

retardation (PC-R. 1921). "It depends upon the context and

purpose for which I’m doing the evaluation. Certainly, in a

forensic matter, I have to consider what the legal definition

or criteria are for mental retardation." Id.

Although he testified about it on direct examination, Dr.

Gamache did not mention any adaptive skills in his report (PCR.

1934), because he was convinced, after the testing, that

Mr. Floyd’s level of intellectual functioning was such that

meets the diagnostic criteria, which is not one in the same with the

intelligence score." Id.

19

When asked about the onset before the age of eighteen,

Dr. Gamache stated, "It’s not typically or that’s not

considered an independent prong, but certainly the diagnostic

criteria made reference to it." (PC-R. 1944). In his report,

Dr. Gamache failed to mention the onset before age eighteen

(PC-R. 1946).

I didn’t mention it at all in my report. I didn’t

have that. It was not necessary. If I thought that

that was the cause or some childhood or that there

was some adult onset or cause for his poor

performance on his intellectual skill that he

earned, I would have discussed that.

(PC-R. 1946). Dr. Gamache stated that he had no dispute with

whether or not there was some indication of below-normal

intellectual ability prior to age eighteen (PC-R. 1946).

Dr. Keyes is a professor of special education at the

College of Charleston, South Carolina (PC-R. 1958). He

testified that he teaches primarily graduate courses relating

to mental retardation. Id. Dr. Keyes has a bachelors and

masters degree in special education and a Ph.D. in special

education in mental retardation. Id. His doctoral

dissertation was in the study and analysis of responses in

order to feign mental retardation. Id. Dr. Keyes is also a

fellow of the American Association of Mental Retardation (PCR.

1960).

20

In addition to publishing multiple articles relating to

mental retardation, Dr. Keyes is on the Board of American

Association of Mental Retardation (PC-R. 1961). He is a

certified psychologist and does assessment of and the

determination of the existence of mental retardation. Id.

Dr. Keyes has also done lectures in the area of mental

retardation Id. Most of his presentations in the last ten

years have been primarily criminal-justice issues and on the

death penalty. Id. Although the majority of the

organizations he has testified for have been defense-type

groups, he has given presentations in Tampa for the Florida

Association of Prosecuting Attorneys (PC-R. 1962).

Dr. Keyes has consulted on cases involving mental

retardation, but he has not taken a lot of death-row cases

that come his way (PC-R. 1962-3). He will take a death-row

case if there is evidence of mental retardation (PC-R. 1963).

Dr. Keyes has been qualified as an expert in the field of

mental retardation in South Carolina, North Carolina, Florida,

Arkansas, Texas, Missouri and a couple of other states (PC-R.

1964).

Dr. Keyes defines mental retardation as significant

subaverage intellectual function, with significantly limited

intellectual function that occurs at the same time as deficits

in adaptive skills, manifesting prior to age eighteen (PC-R.

1965). Dr. Keyes explained that you need all three prongs in

order to find somebody mentally retarded. Id.

1974).

of determining adaptive behavior (PC-R. 1979).

21

In the field of psychology, Dr. Keyes would agree that

the best indicator of intelligence is the Wechsler Adult

Intelligence Third Edition (PC-R. 1973-4). The next most

Kaufman (PC-R. 1974). Dr. Keyes disagreed with Dr. Merin’s

testimony that the research involving mental retardation

hasn’t changed much over the years (PC-R. 1970). In fact, the

definition of mental retardation has been upgraded five times

since 1959. Id.

With regard to adaptive behavior, Dr. Keyes noted that it

is a clear misconception to say that people cannot do anything

or they are simply not mentally retarded (PC-R. 1976). "We

have constant thinking that people with mental retardation

can’t do anything with their lives, yet there are things that

they can do, given the correct instruction and support in

their lives (PC-R. 1977).

In terms of doing an adaptive behavioral analysis, Dr.

Keyes begins with records, including school, criminal,

psychological and DOC records (PC-R. 1977). Dr. Keyes will

also interview people who can tell him about that person’s

functional development during this period of their life (PC-R.

22

someone’s adaptive skills (PC-R. 1979). The types of

questions in the Vilin involve communication, expressive

skills, written skills, daily living skills, etc. Id . Dr.

Keyes believes these interviews are vital to having a real

good picture of the individual (PC-R. 1980).

When Dr. Keyes was initially contacted about becoming

involved in Mr. Floyd’s case, he asked for some background

information (PC-R. 1981). After looking at school records, he

agreed to become involved. Id. The school records

demonstrated that Mr. Floyd was clearly impaired long before

he did any testing (PC-R. 1982). "Kids don’t get grades like

these unless they have difficulty. They don’t say a whole lot

about how much they did to help him, but this was it." Id.

Dr. Keyes spent nine hours with Mr. Floyd on three

separate trips (PC-R. 1984-5). Dr. Keyes administered the

Wechsler-III, which resulted in a full scale score of 73 (PCR.

1986). This result indicated that Mr. Floyd was within the

standard range for retardation. Id. Dr. Keyes was also

concerned that there was clear evidence of brain damage and as

a result, he asked for neuropsychological testing to be

performed (PC-R. 1987). Dr. Keyes reviewed Dr. Crown’s

report, and agreed with him that Mr. Floyd has brain damage.

Id.

After completing the evaluation, Dr. Keyes began to look

into the adaptive skills (PC-R. 1988). He started with the

records, then got in touch with various family members and

Floyd was mentally retarded until he completed the Vilin (PC-R.

2010).

hours (PC-R. 2014). Dr. Keyes felt that Johnny Floyd was being very

straightforward (PC-R. 2026). Dr. Keyes spent two hours with Mr.

Boykins and about an hour and-a-half with Lila Richardson (PC-R.

2027).

23

friends. Id. Dr. Keyes identified Defense Exhibit No. 9 as a

copy of a Vilin Adaptive Behavior Skills form that was used as

the Vilin because it gives the most accurate information, it

is not terribly cumbersome to score, and it also gives you an

opportunity to get good valid information from several

different individual areas (PC-R. 1989). Dr. Keyes gave the

Vilin to Johnny Floyd, who is the older brother of Mr. Floyd

(PC-R. 1990). Dr. Keyes also spoke to two family friends, Jim

Dr. Keyes asked about their memories of what Mr. Floyd

was like during his childhood and adolescence (PC-R. 1990).

With regard to work, Mr. Floyd had difficulty showing up to

work on time (PC-R. 1991-2). He worked for his father’s

company for a long time as a landscape assistant (PC-R. 1992).

Mr. Floyd would probably have been fired long before then, if

not for the fact his father was the boss (PC-R. 1992). Mr.

Floyd did not have a bank account, although he was able to get

a driver’s license with his brother’s assistance (PC-R. 1992-

have withdrawn from the case (PC-R. 2023).

24

3). When Mr. Floyd was young, his brother did his homework

for him (PC-R. 1993).

Finally, Dr. Keyes explained the significance of

structure in Mr. Floyd’s life in relation to the test scores:

Q. Okay, let’s talk about the consistency of Mr.

Floyd’s scores. Let’s see look at Mr. Floyd’s

test scores and then the background materials

from when he was fifteen.

Did that help you?

A. Yes, very much.

Q. How do you explain this fifty-one IQ in school

compared to the seventy-three that the other

expert came up with here?

A. Well, a couple ways. When he was fifteen years

old, his life was totally unstructured. He went

to school when he wanted to. He didn’t have a

strong mother figure in his life. She was a

very severe alcoholic. I don’t think he was

feigning any of these - -

Q. So you didn’t see malingering?

Q. Well, because isn’t it true that it’s not just

the IQ score or the school records that indicate

that he did poorly in school?

A. Right.

Q. How do you explain this sort of fluctuation from

when he was fifteen or this IQ of fifty-one

here, compared to the seventy-three here?

A. It’s structure. He has a higher level of

structure now than he’s ever had. By reference

to his ability to think and react, it’s

increased.

Q. So based upon your expertise in mental

retardation, do you feel that Mr. Floyd is

mentally retarded?

A. James Floyd is mentally retarded, yes.

Q. Based upon the AAMR definition?

A. Yes.

incorporated into this hearing (PC-S. 637-8).

pleadings (PC-S. 308).

25

(PC-R. 1997-8). Based on his expertise in the field, Dr.

Keyes concluded that Mr. Floyd is mentally retarded (PC-R.

1998).

During the second part of the evidentiary hearing,

several witness testified regarding the ineffective assistance

that he was appointed to represent Mr. Floyd in his

resentencing on February 10, 1987 (PC-S. 305). At the time of

his appointment, Mr. Love was not aware of what kind of

resentencing he was doing (PC-S.

other capital murder trials or penalty phases (PC-S. 305-6).

Prior to the resentencing, Mr. Love did not speak to nor

did he obtain any documents from Mr. Floyd’s attorney at the

first trial, Martin Murray (PC-S. 309). Mr. Love maintains

that he attempted to track him down, but it was to no avail.

Id.

Mr. Love agreed that it would be fair to say that the

theme he was going for at the resentencing was that Mr. Floyd

was a good and responsible person who was relatively nonviolent

with a solid work record (PC-S. 351). Mr. Love spoke

(PC-S. 342).

tell the jury that Mr. Floyd should not be sentenced to death

(RS. 920-7).

26

with Mr. Floyd and the people who were to testify, and he

developed their testimony that would help his theme (PC-S.

The victim’s daughter was a part of the centerpiece of

what Mr. Love was trying to do (PC-S. 358). Her feelings were

that her mother would not have wanted Mr. Floyd to be put to

death (PC-S. 359). This fit into the theme that Mr. Floyd was

In the course of representing Mr. Floyd, it never

occurred to Mr. Love that Mr. Floyd was not understanding what

he was telling him (PC-S. 365). Nothing from his dialogues

with Mr. Floyd made Mr. Love think that Mr. Floyd "is just not

right there and, you know, I’m a little worried about that,

maybe I ought to get something done." (PC-S. 366). Mr. Love

does not recall Mr. Floyd telling him that he had a low IQ, or

that he wanted to promote an additional theme to show that he

was a slow learner or mentally handicapped. Id. Mr. Love

believed that at the conclusion of the case he had represented

Mr. Floyd to the best of his abilities (PC-S. 384). However,

Mr. Love did concede that:

I don’t think there is a question of tactics have

27

(PC-S. 385)(emphasis added).

When questioned about his failure to investigate, Mr.

Love conceded that he did not obtain any of Mr. Floyd’s

records, nor did he hire a mental health expert:

Q I’m showing you what has been marked as Defense

Exhibit No. 15, ask you if you recognize that

document. Have you seen that document before?

A I think I have seen it recently, but I did not

have this or obtain it.

Q What is it?

A At the time of my representation of James, it is

a psychological report from the Pinellas County

Public Schools.

Q What is the date?

A It says contact date on the corner. I don’t

know if is {sic} marked 24. It is 1976. It has

apparently a contact date of December of 1975.

Q Does it look like a school record of Mr. Floyd?

A Apparently so.

Q I would like you to go down to the evaluation of

test data on the first page.

A Yes.

A Yes, I do.

Q Did you hire anybody in your involvement of Mr.

Floyd’s case to look into his mitigation?

A A mitigation specialist?

Q Yes.

A No.

Q How about prison records?

row prior to representing him, he did not obtain Mr. Floyd’s prison

records, including a Florida State Prison document indicating that

Mr. Floyd had an IQ of less than 60 (PC-S. 341).

28

A I know that I had discussed those things with

James, about how he had been handling things and

whatever, that he had done well; but I can’t

recall specifically, you know.

Q Did you have Mr. Floyd evaluated for mental

retardation?

A No, I didn’t.

Q Did you have him evaluated for any organic brain

damage?

A No.

Testimony at the evidentiary hearing reflected that Mr.

Love should have been aware of the need for a mental health

expert:

Q Mr. Estelle stated at the resentencing that Mr.

Floyd had extreme mood swings, staring into

space, suffered a big depression, and at times

appeared manic. Do you recall the testimony?

A Not the specific testimony, but I recall

testimony about James having some difficulties.

Q Did that raise any concerns that you should,

perhaps, hire a health expert or some sort of

expert to look into Mr. Floyd’s problems that he

was having at the time?

A Apparently not.

(PC-S. 344).

Testimony at the evidentiary hearing established that Mr.

Love’s failure to obtain records was not based on strategy:

Q Was there a strategic reason not to get his DOC

records?

A Not that I can recall.

Q Was there a strategic reason not to hire a

mental health expert?

A Strategic reason, no.

(PC-S. 378-9).

complete file (PC-S. 386).

at Mr. Floyd’s resentencing proceeding.

29

Mr. Love acknowledged that his present practice is to

utilize mental health experts:

Q Do you represent capital defendants today?

A Yes, I do.

Q Do you regularly hire mental experts in your

investigation today?

A Yes, I do.

Q Do you regularly hire investigators?

A Yes, I do.

Q Is that a standard practice of course today?

A Yes, it is.

(PC-S. 345).

At the time of this case, Mr. Love had not picked a death

qualified jury before (PC-S. 347). He recalled that the

Florida Supreme Court mentioned in the remand that he had

failed to preserve the issue of the striking of a black juror.

Id. Mr. Love thought that he did not need to say more at

trial, but apparently, he was incorrect on that (PC-S. 348-9).

At the conclusion of Mr. Love’s testimony, the Defense moved

In addition to Mr. Love, several lay witnesses also

testified at the evidentiary hearing: Lelia Richardson,

an incident in which James, when he was young, drank some

kerosene that was on the floor (PC-S. 460). James had to be

(PC-S. 497). She met with him again for about two hours in September

of 2002. Id.

30

taken to the emergency room. Id. Ms. Richardson also stated

that Pinkie Floyd. James’ mother, drank while she was pregnant

with some of the children (PC-S. 456); that she took Ms. Floyd

to AA meetings, but that none of this worked. Id.

There was additional testimony which detailed the

physical abuse by James Floyd’s father toward his mother (PCS.

458). In response to Pinkie’s drinking, Mr. Floyd would

abuse her; he would slap her around (PC-S. 479). Several

times, as a result of this, Pinkie Floyd ended up in the

hospital (PC-S. 479-80).

Finally, there was testimony that James Floyd did work at

his father’s direction (PC-S. 465); that he seemed to have a

problem with learning things (PC-S. 468-9); and that he wasn’t

able to do very much on his own (PC-S. 470).

Faye Sultan, a clinical psychologist, testified that she

was hired by CCRC in 1994 to perform a psychological

evaluation on Mr. Floyd for mitigation purposes (PC-S. 483,

interview and did some psychological testing (PC-S. 498).

After meeting with Mr. Floyd in 1994, it was clear to Dr.

Sultan that there was something about his intellectual

functioning and general brain function that was not within

normal limits (PC-S. 498).

that neuropsychological testing might reveal some brain damage quite

separate from the mental retardation (PC-S. 501).

31

For example, maybe that’s the best way to

explain it, Mr. Floyd knew what year his son was

born, but didn’t know how old his son was and

couldn’t figure it out from the current date at that

time back to his child’s birthday. He was off by

six years. I think his son was 12 or 13 and he told

me he was six or seven, which is a very

extraordinary distortion or inability to process.

It struck me as pretty odd. There was something

about his verbal fluency that was unusual as well.

He spoke very slowly. He often used the wrong words

in sentences.

(PC-S. 498-9). As a result of these questions, Dr. Sultan

administered the Wechsler Adult Intelligence Scale Revised as

well as the Woodcock Johnson Psycho Educational Battery (PC-S.

499-500). The Wechsler indicated that Mr. Floyd was

functioning within the range of mental retardation, with a

full scale IQ of 68 (PC-S. 500). The Woodcock test indicated

that Mr. Floyd’s reading level was at the very beginning of

Dr. Sultan also reviewed background material that were

contained in Defense Exhibit 16 (PC-S. 503). As for the

significance of the school records, Dr. Sultan stated:

In order to make a diagnosis of mental

retardation we’re really required, as psychologists,

to know what the level of intellectual functioning

was prior to the age of 18.

And there was the good fortune in this case of

Mr. Floyd having been tested by the Pinellas County

School System by a school psychologist somewhere

years and four months old. They did a couple kinds

32

of testing, so I was able to compare the scores from

back then to the current scores.

The psychologist administered the Wechsler

Intelligence Scale for Children Revised to him and

reported that Mr. Floyd was - - James, as they

called him then because he was a school kid,

received an overall IQ of 51.

The school psychologist talked about how serious

Mr. Floyd’s learning problems were, how slow he was

intellectually. Talked about the fact that he was

functioning in the mentally retarded range and that

he knew that school was very, very uncomfortable for

Mr. Floyd because he was large. Because he actually

looked like an 18 or a 19-year old and was actually

functioning, looking at his achievement test scores,

as about a third grader. His wide range achievement

test scores at that time were all in the second or

third grade.

What that means is that from the age of 15 until

the age at which I did the same test at 34, his

reading level, his reading recognition level, had

moved from the fourth month of the second grade to

the very beginning of the fifth grade. That’s

important to me for some reasons, too; people with

mental retardation certainly continue to learn once

they’re adults. There is nothing about retardation

that would prevent learning. They simply learn much

more slowly than a person without mental

retardation.

(PC-S. 504-6).

Dr. Sultan also reviewed Mr. Floyd’s report cards (PC-S.

506). She found the teachers’ narrative reports very

significant in that it was clear that Mr. Floyd was

functioning well below his grade level (PC-S. 507), and that

he didn’t have the capacity to initiate his own learning or

his own self correction. Id.

In describing Mr. Floyd’s background, Dr. Sultan noted

that he originally described the family as a nice, loving

group of people (PC-S. 520). As the clinical evaluation went

on, his description of the household strongly contradicted the

33

picture he originally presented Id. Mr. Floyd described a

household where the children were essentially on their own.

Id. There were arguments between James’ parents over his

mom’s drinking (PC-S. 520-1). James’ father would become

enraged with his mother and he would scream at her and hit her

(PC-S. 521).

Mr. Floyd had extreme difficulty in school, but he did

not want anybody to know that. Id. His older brother,

Johnny, probably knew about it because he would sometimes help

James do his homework. Id. Johnny also helped James get his

driver’s license by tutoring him for the test. Id. James

didn’t get his drivers’ license until he was around 20 because

he couldn’t pass the driving test. Id. James would make a

lot of mistakes when he was working for his dad, and his dad

would become angry and call him stupid. Id. James also

talked about his father isolating him from the other children

and raping him anally on a number of occasions when he was

about the age of 10 (PC-S. 522).

Dr. Sultan described what Mr. Floyds’ life was like in

1984 leading up to the murder (PC-S. 523). His father had

died and left his home and inheritance to a daughter from

another relationship. Id As a result, the family was

displaced. Id. Mr. Floyd, who required a great deal of

structure in his life, and who was not very successful at

maintaining a job, had nowhere to go. Id. He was living with

suffers from brain damage (PC-S. 526).

34

a girlfriend at the time of the offense, had a small child,

and was increasing his use of substances (PC-S. 523-4).

Dr. Sultan stated that it would be fair to say that Mr.

Floyd was under extreme emotional disturbance of distress in

1984 (PC-S. 525). He had suffered from serious depression,

and he had some difficulty in reasoning, thinking and

Added to all of this was the fact that Mr. Floyd was using

substances at the time of the offense and he had mental

retardation. Id. In addition, Mr. Floyd had a background

that was quite traumatic and would lead to a great deal of

dysfunction and distress. Id.

With regard to non-statutory mitigating factors, Dr.

Sultan found:

James Floyd has suffered from a mental illness

of depression from at least the time of early

adulthood prior to the time of this offense.

I found that James Floyd suffered from some

diffuse brain damage that altered his reasoning

abilities, his concept formation abilities,

generally impaired his judgments, specifically in

the frontal lobe areas of his brain.

I found that James Floyd had mental retardation.

I found that James Floyd had a severely chaotic

family life. That he both witnessed and himself

experienced physical and emotional abuse when at his

house. That he was himself the victim of sexual

abuse.

I found that he was one of several children, all

of whom were severely neglected in their families

and not properly cared for. I found that the lack

of structure in his home environment caused him

severe dysfunction in his life.

witnesses: Theresa Walsh, a CCRC investigator, testified to

her efforts to locate Mr. Murry in 1992 (PC-S. 442-5); Odalys

Rojas, also a CCRC investigator (PC-S. 535-8) and Pam

Izakowitz, Mr. Floyd’s postconviction counsel (PC-S. 540-4),

testified to their unsuccessful attempts to locate Tina Glenn

prior to the evidentiary hearing.

There was also a stipulation regarding the proposed

testimony of Jeff Walsh, another CCRC investigator. The lower

court accepted the stipulation that Mr. Walsh was able to

locate Ms. Glenn in 1994, that he spoke to her, and that he

procured an affidavit as a result of that conversation (PC-S. 448-

35

I found that he suffered from severe academic

problems. I found that the mother’s alcoholism was

a severe detriment to his health and nourishment as

a child and basically rendered the family a

dysfunctional environment.

I found that his difficulties in school also led

to social difficulties so that he was socially

inhibited and quite shy and had a lot of trouble in

social interaction with people as an adult.

I found that he was unable to hold a job. That

the jobs that he did hold were repetitive menial

tasks during which he still required a great deal of

supervision.

(PC-S. 531-2). Dr. Sultan concluded that these factors were

present in 1984 when Mr. Floyd first went to trial (PC-S.

532).

Another major issue during the evidentiary hearing dealt

with a Brady/Giglio claim. The Defense supported its claim

primarily through uncontroverted documentary evidence.

Additionally, the Defense elicited testimony from several

witnesses: Joe Episcopo, the assistant state attorney who

prosecuted Mr. Floyd’s case (PC-S. 388); Stephen Kissinger, a

former CCRC attorney who had served as lead postconviction

counsel on Mr. Floyd’s case (PC-S. 418); and Robert Love, Mr.

9).

detective on Mr. Floyd’s case in 1984. Mr. Engelke had

reviewed the various police reports prior to testifying and

recalled that Det. Gatchel’s interviews of Tina Glenn occurred

the morning of January 18, 1984 (PC-S. 559). This was shortly

before Mr. Floyd’s arrest. And this was the morning after Ms.

Anderson’s body had been discovered on the evening of January

17, 1984.

36

Mr. Floyd presented as Def. Ex. 1 police reports

contained in the State Attorney’s files that were disclosed to

Mr. Floyd’s collateral counsel pursuant to public records

request (PC-S. 300). Within Def. Ex. 1 were two police

reports authored by Det. Gatchel regarding statements made by

Tina Glenn. Det. Gatchel reported that while conducting a

neighborhood canvass, he contacted Tina Glenn who lived at

Glenn, Det. Gatchel wrote that Ms. Glenn:

advised that she was aware of the homicide

investigation and indicated that on Monday at 1100

hours she last saw the victim around the residence

wearing a dress described as possibly aqua with

flowers and the victim was on the southside of the

residence bent over looking at something on the

ground. The victim picked up something from the

ground and then went back into the house.

She indicated that somewheres {sic} in the

neighborhood at 1330 to 1400 hours while watching

"All My Children" on television, she heard a car

pull up and observed it facing south between her

house and the victim’s house in front of a large

hedge of bushes. She advised the vehicle was

possibly a Lincoln Continental white over redish

orange being in poor condition and having red primer

on the large portion of the vehicle advising the

vehicle had a spare tire kit in the trunk similar to

the continental kit. While discussing the

description of the vehicle, this investigator noted

37

a white over red cadillac sitting across the street

also having primer on it. At which time she advised

the color was orangish and advised the Cadillac was

at that location when the Lincoln pulled up.

She described the suspect 1, being the passenger as

a white male, 30 years old, tall, thin. Dark long

hair with big curls, moustache indicating his eyes

stood out in contrast to his skin having dark eyes

and light color skin.

Subject was wearing possibly a faded out plaid shirt

almost white in color with blue jeans.

Subject number 2, white male, approximately 30 about

the height however, medium build, having straight

short brn hair, clean shaven wearing a t-shirt and

blue jeans. She indicated both subjects had a fast

stride up to the house, knocked on the door, and

although she did not see the victim they were led

into the house.

She advised possibly a half hour to 45 minutes

later, she heard the door slam at the house at which

time again she peered out and observed both subjects

running to the car looking around suspiciously and

get into the car and speed off.

Miss Glenn advised her boyfriend Alan Avant, WM 32,

had his birthday Monday, however, he worked that day

and worked late until 1630 hours and going out

having drinks with friends at work and was not home

during that time. She advised that she lived there

for four months and the victim kept mostly to

herself, however, she saw a lot of young people

coming over to see her and has had parties on her

back porch.

She advised the curly hair subject described as 1,

she believed she has seen on the back porch before.

Def. Ex. 1, Supplementary Report (five pages) of Det. Gatchel

at 1-2. Det. Gatchel noted that after completing his

neighborhood canvass, he invited Ms. Glenn to the police

station because he felt "that she may have possibly seen the

38

perpetrators and wanted to reconduct a more thorough

interview." Id.

Det. Gatchel wrote a second supplementary report

summarizing Ms. Glenn’s second statement. According to Det.

Gatchel, Ms. Glenn again asserted that at 1:00 to 1:30 while

she watching "All My Children," a Lincoln Continental drove up

in front of the victim’s house. Ms. Glenn observed two white

men. They "walked fairly fast towards the front of the

residence and one subject knocked on the door and both

subjects walked into the residence, however, she did not see

the victim actually answer the door." Def. Ex. 1,

Supplementary Report (two pages) of Det. Gatchel at 1. As Ms.

Glenn moved about her own house, she "observed subject 1, come

out onto the back porch area of the residence." Id at 2.

According to Det. Gatchel, Ms. Glenn then advised that

"approximately 1 hour after the individuals had arrived," she

heard a door slam and she "went to the window again." She

observed "them ‘walking very fast’ almost running and looking

around very suspiciously. She stated that she went to the

front porch area and state[d] that she heard the curly hair

subject say to the driver, ‘come on lets go.’ She indicated

the vehicle then had the tires squealing as they left and even

southbound from the residence." Id at 2. Ms. Glenn was shown

a photo pack that included "the subject Richard Nigger" who

"had been working in that area, painting residences and known

evidence an affidavit obtained from Tina Glenn in 1994

reaffirming her statements to Det. Gatchel (PC-S. 449, 543-4).

However, the Court sustained the State’s objection to Ms. Glenn’s

affidavit being introduced into evidence (PC-S. 544).

was not permitted to state what Mr. Murry had told him in reference

to the documents (PC-S. 431-2). Mr. Murry was deceased at the time

of the evidentiary hearing and, as such, unavailable to testify.

39

to be bilking elderly ladies of money." Ms. Glenn didn’t

identify Mr. Nigger’s photo, but did indicate that one of the

Testimony during the evidentiary hearing established that

these reports had not been disclosed to trial counsel. CCRC

attorney Kissinger testified that after obtaining these

documents through the public records process (PC-S. 424, 427),

he wanted to find out from Mr. Murry why they didn’t show up

at trial (PC-S. 430). He also wanted to find Mr. Murry’s file

to determine if these documents were in there (PC-S. 431).

After a lengthy search, Mr. Kissinger located Mr. Murry

in California in October, 1992 (PC-S. 422). He proceeded to

fly out and interview Mr. Murry (PC-S. 423). With regard to

the file, Mr. Murry stated that he did not know where the file

was but that he would ask around (PC-S. 424). CCRC was never

able to locate Mr. Murry’s file (PC-S. 435). After speaking

with Mr. Murry, Mr. Kissinger focused his efforts on the

component of the Brady claim as opposed to an ineffective

it could "only assume that Murry did not know of Tina Glenn-

Avant or her statement to the police." (PC-R. 2159).

an attorney who was familiar with Martin Murry (PC-S. 574).

hearing, was an attorney who was familiar with Martin Murry (PC-S.

601).

40

Mr. Love testified that in his review of the package of

discovery materials, he did not see any police reports or

Martin Rice testified that if Mr. Murry had the information

described in the Tina Glenn report, it is something that Mr.

Rice would have to assume that Mr. Murry explored (PC-S.

Coupled with the testimony of these witnesses is the fact

that the State conceded that at the time of Mr. Floyd’s trial,

police reports had not been disclosed to the defense except

for those portions that contained verbatim statements of

Attorney McGarry as his first witness at the evidentiary

hearing in order to testify to the policies of the State

Attorney’s Office, the State objected, saying "We have already

conceded in this case that the discovery may not have included

some [of] the parts they wish to raise. There is no further

reason that we are aware of to call Mr. McGarry as a witness

in this case" (PC-S. 297). Accepting the State’s stipulation

to the non-disclosure, Mr. Floyd indicated that he wished to

establish that the undisclosed material had been in the

State’s possession (PC-S. 298). Thereupon, the parties worked

out a stipulation that Def. Ex. 1-4 had been in the State’s

possession and provided to collateral counsel pursuant to

public records requests (PC-S. 297-304, 422-24, 634-5). As a

result, Mr. McGarry did not take the witness stand.

Olsen, a supplemental report by Detective Engelke dated 1-23-84, a

supplemental report by Detective Crotty dated 1-23-84, a supplemental

report by Detective Crotty dated 6-14-84, a supplemental report by

Detective Pflieger dated 2-6-84, and a supplemental report by Officer

Newland dated 2-4-84.

41

practice in his testimony (PC-S. 407-8).

In addition to the Tina Glenn reports, multiple other

police reports contained in Def. Ex. 1 were introduced into

evidence by postconviction counsel as not having been

inconsistencies in the crime scene investigation. These

inconsistencies include evidence which would have diminished

the significance of negroid hairs found at the scene and

impeachment that could have been used by the defense.

Next, Mr. Floyd presented as Def. Ex. 2, state attorney

investigative reports (sometimes called "Green Sheets")

contained in the State Attorney’s files that were disclosed to

Mr. Floyd’s collateral counsel pursuant to public records

42

request (PC-S. 301). These investigative reports include

information which could have been used to impeach state

witnesses Huey Byrd and Gregory Anderson. They also included

information that could have led to an investigation of other

possible suspects.

The State conceded that at the time of Mr. Floyd’s trial,

these investigative reports were viewed as privileged and were

not disclosed to the defense (PC-S. 414-15). According to Mr.

Episcopo, "[w]e never gave out the Green Sheets." (PC-S. 409).

In fact, the State in seeking to quash the subpoena of Glenn

Martin set forth its policy regarding the disclosure of

evidence gathered pursuant to a State Attorney investigation:

9. The State Attorney, under the system

established by the Florida Constitution and laws of

Florida, is a "one-man grand jury" and as such, he

possesses all the rights and privileges afforded to

the grand jury. Imperato v. Spicola, 238 So.2d 503

(Fla. 2d DCA 1970).

10. Seeking the investigative work product of the

State Attorney’s Office is clearly improper and

harassive. Bedami v. State, 112 So.2d 284 (Fla. 2d

DCA 1959). * * * The confidentiality of such

information is also recognized by federal case law.

Vogel v. Gruaz, 110 U.S. 311, 5 S.Ct. 12 (1884). In

Vogel, the U.S. Supreme Court held that statements

made by a witness to a state attorney concerning a

criminal investigation were absolutely privileged

and inadmissible in evidence. This privilege is of

constitutional origin. In re Quarles, 158 U.S. 532,

15 S.Ct. 959 (1885).

(PC-S. 32-6).

Finally, Mr. Floyd presented as Def. Ex. 3, letters

written by Gregory Anderson to Det. Pfleiger and Joe Episcopo,

the assigned assistant state attorney. These letters were

Gregory Anderson following his arrest on January 18, 1984, was

when Anderson called him on February 10, 1984, which led to

Pfleiger arranging a meeting with Mr. Episcopo on February 13,

1984 (R. 801-02).

43

contained in the State Attorney’s files that were disclosed to

Mr. Floyd’s collateral counsel pursuant to public records

request (PC-S. 301).

In a March 8, 1984 letter, Mr. Anderson had written to

the trial prosecutor and stated:

You know before I had even talked to you concerning

what Floyd had told me, Det. Pfleiger and I had

talked several times, on the phone and in person and

he had talked to his supervisor and to Det.

Grigsby’s supervisor about getting the robbery

charge reduced and he had informed me more than once

that they had no objection to having the charge

reduced. He had even talked to my State’s Attorney

about it and my last conversation with Det. Pfleiger

he was going to be in court today and say this. I

wonder what happened, if they would have reduced it

even to Grand Theft and even if I would have plead

guilty to the other charge it would have put me in

the point system of Probation, or at the very worse

1 yr or 18 months which I already have 8 months in.

Def. Ex. 3.

In a letter to Det. Pfleiger that pre-dated his phone

keeping my ears open and made friends with this black guy in

here James Floyd." Within the letter, Mr. Anderson stated:

I would really appreciate to talk to you as soon as

possible, you told me if I heard anything to let you

know and no one else, I tried to get a hold of

Detective Lieutenant Hensley at first but I thought

I should wait and talk with you first as you told

me, hope to be seeing you real soon, he’s got Ron

Heidi, Public Defender for his lawyer but he’s

trying to get appointed a street lawyer. Ralph, I

these letters were not disclosed (PC-R. 2161).

Attorney’s Office (PC-S. 546). At the time of the murder, he was a

detective who had worked on Mr. Floyd’s case (PC-S. 546).

44

pray to God you are still trying to help me, I hope

you haven’t said the hell with me like Taylor has

you know I appreciate anything you can do, Ralph,

I’d rather die then go to prison and not be able to

be a part of and watch my daughter grow up, please

Sir, and thank you.

Def. Ex. 3. This letter contained the following postscript,

"I don’t know why you won’t or can’t except {sic} my phone

calls, but will you please take the time and come out here and

discuss this with me." Id.

Mr. Episcopo testified that he had "no idea whether [the

Anderson] letters were" disclosed to Mr. Floyd’s trial

attorney (PC-S. 397-8). However, he indicated that the

Acknowledgment of Discovery dated April 11, 1984, (Def. Ex. 4)

was the best evidence of what he disclosed to Mr. Floyd’s

trial attorney (PC-S. 123-4). The letters were not included

Martin Rice and Frank Louderback (PC-S. 574; PC-S. 601).

Mr. Engelke had the occasion to interview Mr. Floyd along

with Detective Crotty (PC-S. 548). Mr. Engelke was of the

opinion that Mr. Floyd was not impaired in any fashion, nor

did he have any kind of disability, and he was adequately able

to express himself (PC-S. 552).

45

With regard to the Tina Glenn report, Mr. Engelke

testified that Tina Glenn was interviewed twice by Detective

Gatchel (PC-S. 571). On the same day that Ms. Glenn was

interviewed, Mr. Floyd was arrested (PC-S. 559-60). Mr.

Engelke has no memory of any conversations with Detective

Gatchel regarding the information that is contained in that

report (PC-S. 562).

Martin Rice and Frank Louderback, both attorneys, were

familiar with Mr. Murry (PC-S. 574, 602). In addition to

their aforementioned testimony, they testified that,

essentially, Mr. Murry was an excellent attorney (PC-S. 576,

606); that he had an alcohol problem (PC-S. 578, 648); and

that he pulled clear of this problem after treatment (PC-S.

579, 605).

1. Mr. Floyd was deprived of his rights to due process

when the State failed to disclose a wealth of exculpatory

evidence in its possession to Mr. Floyd. Confidence in the

reliability of the outcome of the proceedings is undermined by

the non-disclosures. Further, the State knowingly presented

false or misleading evidence and/or argument at his trial in

order to obtain a conviction and sentence of death. The

circuit court erred in its analysis of the components of this

due process claim and failed to consider the cumulative effect

of the prejudice suffered as a result of the State’s misdeeds.

46

Mr. Floyd’s convictions and sentence of death must be vacated

and a new trial and sentencing ordered.

2. Mr. Floyd was deprived of the effective assistance

of counsel at his capital trial. When cumulative

consideration is given to the wealth of exculpatory evidence

that did not reach Mr. Floyd’s jury, either because the State

failed to disclose or because trial counsel failed to

discover, confidence in the reliability of the outcome is

undermined.

3. Mr. Floyd was deprived of effective assistance of

counsel at the penalty phase of his capital trial when counsel

unreasonably failed to present evidence of compelling and

substantial mitigating circumstances.

4. Mr. Floyd’s death sentence is unconstitutional due

to the fact that he is mentally retarded. The procedures and

standards used by the lower court in determining Mr. Floyd’s

mental retardation were erroneous and in violation of Mr.

Floyd’s constitutional rights. Mr. Floyd is entitled to a

proper hearing, with proper procedures in place and to a jury

determination as to mental retardation.

5. The lower court judge should have disqualified

himself

from the postconviction evidentiary hearing proceedings. Mr.

Floyd had a reasonable fear that the judge could not be fair

47

appointed expert. This case should be remanded for new

proceedings before an impartial judge.

6. Mr. Floyd’s conviction and sentence are

unconstitutional under Ring v. Arizona. Sentencing relief is

warranted.

The constitutional arguments advanced in this brief

present mixed questions of fact and law. As such, this Court

is required to give deference to the factual conclusions of

the lower court. The legal conclusions of the lower court are

to be reviewed independently. See Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Stephens v.

State, 748 So.2d 1028 (Fla. 1999).

During the evidentiary hearing, Mr. Floyd presented

testimony and documentary proof of the State’s failure to

disclose material, exculpatory evidence, and its presentation

of false and misleading evidence.

In order to insure that a constitutionally sufficient

adversarial testing, and hence a fair trial, occur, certain

obligations are imposed upon the prosecuting attorney. The

48

prosecutor is required to disclose to the defense evidence

"that is both favorable to the accused and ‘material either to

guilt or punishment.’" United States v. Bagley, 473 U.S. 667,

674 (1985), quoting Brady v. Maryland, 373 U.S. 83, 87 (1963).

The State also has a duty to learn of any favorable evidence

known to individuals acting on the government's behalf.

Strickler v. Greene, 527 U.S. 263, 281 (1999). It is

reasonable for defense counsel to rely on the "presumption

that the prosecutor would fully perform his duty to disclose

all exculpatory evidence." Id. at 284. Exculpatory and

material evidence is evidence of a favorable character for the

defense which creates a reasonable probability that the

outcome of the guilt and/or sentencing phase of the trial

would have been different. Garcia v. State, 622 So. 2d 1325,

1330-31 (Fla. 1993). This standard is met and reversal is

required once the reviewing court concludes that there exists

a "reasonable probability that had the [unpresented] evidence

been disclosed to the defense, the result of the proceeding

would have been different." Bagley, 473 U.S. at 680. "The

question is not whether the defendant would more likely than

not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as

a trial resulting in a verdict worthy of confidence." Kyles

v. Whitley, 514 U.S. 419, 434 (1995).

This Court has indicated that the question is whether the

State possessed exculpatory "information" that it did not

cases wherein confidence has undermined the reliability of the

conviction as a result of the prosecutor’s failure to comply with his

obligation to disclose exculpatory evidence. Cardona v. State, 826

So.2d 968 (Fla. 2002); Hoffman v. State, 800 So.2d 174 (Fla. 2001);

State v. Huggins, 788 So.2d 238 (Fla. 2001); Rogers v. State, 782

So.2d 373 (Fla. 2001); State v. Gunsby, 670 So.2d 920 (Fla. 1996).

49

reveal to the defendant. Young v. State, 739 So. 2d 553 (Fla.

1999). If it did, and it did not disclose this information, a

new trial is warranted where confidence is undermined in the

should consider not only how the State’s suppression of

favorable information deprived the defendant of direct

relevant evidence but also how it handicapped the defendant’s

ability to investigate or present other aspects of the case."

Rogers v. State, 782 So. 2d at 385. This includes impeachment

presentable through cross-examination challenging the

"thoroughness and even good faith of the [police]

investigation." Kyles, 514 U.S. at 446.

At the evidentiary hearing, Mr. Floyd presented as Def.

Ex. 1, police reports contained in the State Attorney’s files

that were disclosed to Mr. Floyd’s collateral counsel pursuant

to public records request (PC-S. 300). Between the State’s

stipulation and the uncontroverted evidence presented at the

evidentiary hearing, it is clear that the police reports

introduced in Def. Ex. 1 were not disclosed to Mr. Floyd’s

trial attorney.

Murry did not know of Tina Glenn-Avant or her statement to the

police." (PC-R. 2159).

victim’s body was discovered on the evening of January 17,

1984 (R. 3).

detailing the discovery of Ms. Anderson’s body. According to Officer

Olsen, Rev. Warthen was the last person who was then known to see the

victim alive. Rev. Warthen "last saw the vict. at church yesterday

(First Pres. Church, 701 Beach Dr. N.E.) at approx. 1100 hrs, 16

Jan." Def. Ex. 1, Narrative Continuation Sheet of Officer Olsen at

2.

floral blue, pink and purple pattern (PC-S. 565).

50

The Tina Glenn reports represent the proverbial

"bombshell", an eyewitness account of two white men at the

victim’s residence within the time frame that James Floyd, a

black male, had purportedly committed the murders.

Detective Gatchell interviewed Ms. Glenn on the morning

of January 18, 1984 (PC-S. 559), less than two days after the

between the homicide and the statement of Ms. Glenn, it is

likely that her recollection was fresh and accurate.

Ms. Glenn last saw the victim around 11:00 a.m. on

able to describe in detail the two men who entered the

victim’s house around 1:00 to 1:30 while she was watching "All

She described the suspect 1, being the passenger as a

white male, 30 years old, tall, thin. Dark long hair with

big curls, moustache indicating his eyes stood out in

contrast to his skin having dark eyes and light color

skin.

Subject was wearing possibly a faded out plaid shirt

almost white in color with blue jeans.

Subject number 2, white male, approximately 30 about the

height however, medium build, having straight short brn

hair, clean shaven wearing a t-shirt and blue jeans.

Def. Ex. 1, Supplementary Report (five pages) of Det. Gatchel at 1-

2).

two individuals left approximately one hour after they had

arrived. Def. Ex. 1.

signature on her mother’s check was her mother’s handwriting.

51

and running to their car possibly a half hour to 45 minutes

The lower court erroneously concluded that "CCRC-S has

failed to show that this information is material or that it

could ‘reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.’"

(citations omitted) (PC-R. 2159).

The aforementioned information substantiates the

importance of Ms. Glenn’s statements. The medical examiner

testified that Ms. Anderson died on January 16, 1984 (R. 469).

A bank teller testified that she had cashed a check on Ms.

(R. 551).

52

Mr. Floyd had cashed a forged check on Ms. Anderson’s account

at approximately 4:15 p.m. (R. 473-75). Therefore, the murder

had to have occurred after 1:47 pm and before 4:15 p.m. on

January 16, 1984.

Ms. Glenn’s statement places the two white males at the

Glenn residence on January 16, 1984, somewhere in the time

frame of 1:00 p.m. to 2:30 p.m., when the murder likely

occurred. In his closing argument, the trial prosecutor

argued that Ms. Anderson had thereafter returned home and

surprised an intruder in her house (R. 851). Ms. Glenn’s

statement supports this notion. The only discrepancy with the

prosecutor’s argument is that there were two intruders, they

were white, and neither one was James Floyd.

Based on the information found in several of the

remaining undisclosed police reports, it is clear that the

crime scene investigation was suspect. These reports clearly

demonstrate not only discrepancies as to what may have taken

place on the day of the murder, but also the importance of

evidence submitted at the trial.