i

This proceeding involves the appeal of the circuit court’s

denial of Mr. Wright’s amended motion for post-conviction relief

following this Court’s remand for an evidentiary hearing. Wright v.

State, 581 So.2d 882 (Fla. 1991). On June 5, 2000, the circuit court

denied Mr. Wright’s claims two and a half years after the evidentiary

hearing and only after Mr. Wright filed a petition for a writ of

mandamus with this Court. See Wright v. State, Sup. Case No. SC00-

1119. Citations in this brief to designate references to the

records, followed by the appropriate page number, are as follows:

"R. ___" - Record on appeal to this Court in first direct

appeal;

"PC-R1. ___" - Record on appeal to this Court from 1989 denial

of the Motion to Vacate Judgment and Sentence;

"PC-R2. ___" - Record on appeal to this Court from 2000 denial

of the Amended Motion to Vacate Judgment and Sentence;

All other citations will be self-explanatory or will otherwise

be explained.

This is an appeal from the denial of post-conviction relief in

a capital case. This Court has allowed oral argument in other

capital cases in a similar procedural posture. A full opportunity to

air the issues through oral argument is necessary given the

ii

seriousness of the claims and the issues raised here. Mr. Wright,

through counsel, respectfully urges the Court to permit oral

argument.

iii

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

CERTIFICATE OF COMPLIANCE AS TO TYPE SIZE AND STYLE . . 100

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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 10

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 18

A. The Trial Record . . . . . . . . . . . . . . . . 18

B. The 1988 Post-Conviction Record . . . . . . . . 22

C. Proceedings at the 1997 Evidentiary Hearing . . 32

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 50

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . 51

ARGUMENT I

MR. WRIGHT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT AS WELL AS HIS RIGHTS UNDER THE

FIFTH, SIXTH, AND EIGHTH AMENDMENTS, BECAUSE EITHER THE

STATE FAILED TO DISCLOSE EVIDENCE WHICH WAS MATERIAL AND

EXCULPATORY IN NATURE AND/OR PRESENTED MISLEADING EVIDENCE

AND/OR DEFENSE COUNSEL UNREASONABLY FAILED TO DISCOVER AND

PRESENT EXCULPATORY EVIDENCE . . . . . . . . . . . . 53

A. Introduction . . . . . . . . . . . . . . . . . . 53

B. Previously Unavailable Evidence and False Facts 56

1. False fact regarding Freddie Williams . . . 57

iv

2. False fact as to polygraph . . . . . . . . 60

3. Previously undisclosed exculpatory evidence 61

C. Guarantee to Adequate Adversarial Testing . . . 63

1. Evidence not disclosed by the State . 65

2. Evidence not present by defense counsel 69

3. Confidence is undermined in outcome . 71

D. Evidence of Innocent Under Jones v. State . . . 76

E. Cumulative Analysis Is Required . . . . . . . . . 78

ARGUMENT II

HOWARD PEARL’S STATUS AS A SPECIAL DEPUTY SHERIFF, IN

CONJUNCTION WITH WALTER PELLICER’S TESTIMONY THAT FREDDIE

WILLIAMS, MR. PEARL’S INVESTIGATOR WAS A BONDED DEPUTY

SHERIFF IN PUTNAM COUNTY, AFFECTED THE DEFENSE TEAM’S

PERFORMANCE AND INTERFERED WITH ITS ABILITY TO PROVIDE

EFFECTIVE REPRESENTATION . . . . . . . . . . . . . . 81

ARGUMENT III

MR. WRIGHT WAS DEPRIVED OF HIS RIGHT TO A FAIR AND

IMPARTIAL JUDGE WHEN JUDGE ROBERT PERRY PRESIDED OVER HIS

TRIAL IN 1983 AND OVER HIS POST-CONVICTION EVIDENTIARY

HEARING IN 1988 IN VIOLATION OF THE SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS . . . . . . . . . . . . . . . 88

A. Introduction . . . . . . . . . . . . . . . . . . 88

B. Ties to Sheriff Pellicer . . . . . . . . . . . . 92

C. Ex parte contact with State was standard practice 94

D. Conclusion . . . . . . . . . . . . . . . . . . . 95

ARGUMENT IV

MR. WRIGHT’S WAS SENTENCED TO DEATH BY A JUDGE WHOSE

STANDARD PRACTICE WAS TO HAVE THE STATE DRAFT THE FINDINGS

v

IN SUPPORT OF A SENTENCE OF DEATH. THIS PROCEDURE

ERRONEOUS PROCEDURE VIOLATED DUE PROCESS AND FLORIDA LAW 96

ARGUMENT V

THE PROCEDURE FOLLOWED DURING POST-CONVICTION HAS VIOLATED

MR. WRIGHT’S DUE PROCESS RIGHTS UNDER JONES V. STATE, 740

SO.2D 520 (FLA. 1999), AND NEW TRIAL IS WARRANTED . 98

ARGUMENT VI

THIS COURT FAILED TO COMPLY WITH THE REQUIREMENTS OF

SOCHOR V. FLORIDA WHEN IT AFFIRMED MR. WRIGHT’S SENTENCE

OF DEATH ON DIRECT APPEAL . . . . . . . . . . . . . 99

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

vi

Anderson v. Sheppard,

856 F.2d 741 (6th Cir. 1988) . . . . . . . . . . . . . 91

Arizona v. Fulminante,

499 U.S. 279 (1990) . . . . . . . . . . . . . . . . . 89

Bracey v. Gramley,

520 U.S. 899 (1997) . . . . . . . . . . . . . . . . . 88

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . 63

Brecht v. Abrahamson,

507 U.S. 619 (1993) . . . . . . . . . . . . . . . . . 89

Cartalino v. Washington,

122 F.3d 8 (7th Cir. 1997) . . . . . . . . . . . . . . 91

Chapman v. California,

386 U.S. 18 (1967) . . . . . . . . . . . . . . . . 82, 89

Colina v. State,

570 So.2d 929 (Fla. 1990) . . . . . . . . . . . . . . 11

Cuyler v. Sullivan,

446 U.S. 335 (1980) . . . . . . . . . . . . . 82, 86, 87

Duest v. Singletary,

967 F. 2d 472, 478 (11th Cir. 1992),

vacated on other grounds, 113 S. Ct. 1940,

adhered to on remand, 997 F.2d 1326 (1993) . . . . . . 50

Edwards v. Balisok,

117 S. Ct. 1584 (1997) . . . . . . . . . . . . . . . . 88

Garcia v. State,

622 So.2d 1325 (Fla. 1993) . . . . . . . . . . . . . . 64

Grey v. Mississippi,

481 U.S. 648 (1987) . . . . . . . . . . . . . . . . . 89

vii

Holloway v. Arkansas,

435 U.S. 475 (1978) . . . . . . . . . . . . . . . . . 82

In Re Murchison,

349 U.S. 133 (1955) . . . . . . . . . . . . . . . . . 88

Johnson v. Butterworth,

713 So. 2d 985 (Fla. 1998) . . . . . . . . . . . . 57, 98

Johnson v. Butterworth,

713 So. 2d 985 (Fla. 1998) . . . . . . . . . . . . . . *

Johnson v. United States,

117 S. Ct. 1544 (1997) . . . . . . . . . . . . . . . . 89

Jones v. State,

591 So.2d 911 (Fla. 1991) . . . . . . . . . . 51, 55, 76

Jones v. State,

709 So.2d 512 (Fla. 1998) . . . . . . . . . . . . . . 78

Jones v. State,

740 So.2d 520 (Fla. 1999) . . . . . . . . 16, 52, 97, 98

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . 55, 57, 98

Kyles v. Whitley,

115 S. Ct. 1555 (1995) . . . . . . . . . . . . . . . . 71

Lightbourne v. State,

742 So.2d 238 (Fla. 1999) . . . . . . . . . . . . . . 53

LoConte v. Dugger,

847 F.2d 745 (11th Cir.),

cert. denied, 488 U.S. 958 (1988) . . . . . . . . . . 82

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) . . . . . . . . . . . . . . . . . 88

Occhicone v. State,

768 So.2d 1037 (Fla. 2000) . . . . . . . . . . . . . . 55

Porter v. Singletary,

49 F. 3d 1483 (11th Cir. 1995) . . . . . . . . . . . . 88

viii

Provenzano v. State,

616 So. 2d 428 (Fla. 1993) . . . . . . . . . . . . . . 61

Roberts v. Butterworth,

668 So. 2d 580 (Fla. 1996) . . . . . . . . . . . . 57, 98

Rogers v. State,

630 So. 2d 513 (Fla. 1994) . . . . . . . . . . . . . . 92

Rogers v. State,

___ So.2d ___ (Fla. Feb. 15, 2001) . . . . . . . . . . 50

Rose v. Clark,

478 U.S. 570 (1986) . . . . . . . . . . . . . . . . . 90

Satterwhite v. Texas,

486 U.S. 249 (1988) . . . . . . . . . . . . . . . . . 91

Smith v. State,

708 So. 2d 253 (Fla. 1998) . . . . . . . . . . . . . . 92

Smith v. Wainwright,

799 F.2d 1442 (11th Cir. 1986) . . . . . . . . . . . . 63

Sochor v. Florida,

504 U.S. 527 (1992) . . . . . . . . . . . . . . . 52, 99

Spencer v. State,

615 So.2d 688 (Fla. 1993) . . . . . . . . . . . . . . 96

State v. Gunsby,

670 So.2d 920 (Fla. 1996) . . . . . . . . . . . . . . 77

State v. Lewis,

656 So.2d 1248 (Fla. 1995) . . . . . . . . . . . . . . 95

State v. Riechmann,

777 So.2d 342 (Fla. 2000) . . . . . . . . . . . . . . 96

State v. Robinson,

711 So.2d 619 (Fla. 2d DCA 1998) . . . . . . . . . . . 76

Stephens v. State,

748 So.2d 1028 (Fla. 1999) . . . . . . . . . . . . . . 50

Strickland v. Washington,

ix

466 U.S. 668 (1984) . . . . . . . . . . . 50, 63, 82, 86

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . 55, 57, 98

Suarez v. Dugger,

527 So.2d 190 (Fla. 1988) . . . . . . . . . . . . . . 92

Sullivan v. Louisiana,

508 U.S. 275 (1993) . . . . . . . . . . . . . . . . . 88

Teffeteller v. Dugger,

676 So.2d 369 (Fla. 1996) . . . . . . . . . . . . 14, 44

The Florida Bar v. Cox,

___ So.2d ___, Case No. SC96217

(Fla. May 17, 2001) . . . . . . . . . . . . . . . . . 59

The Florida Bar v. Feinberg,

760 So.2d 933 (Fla. 2000) . . . . . . . . . . . . . . 59

Tumey v. Ohio,

273 U.S. 510 (1927) . . . . . . . . . . . . . . . 88, 91

United States v. Bagley,

473 U.S. 667 (1985) . . . . . . . . . . . . . . . 50, 63

United States v. Khoury,

901 F.2d 948 (11th Cir. 1990),

modified on other grounds upon denial of rehearing,

910 F.2d 713 (11th Cir. 1990) . . . . . . . . . . . . 82

United States v. Tatum,

943 F.2d 370 (4th Cir. 1991) . . . . . . . . . . . . . 83

Vasquez v. Hillery,

474 U.S. 254 (1986) . . . . . . . . . . . . . . . . . 90

Ventura v. State,

673 So.2d 479 (Fla. 1996) . . . . . . . . . . . . . . 62

Way v. State,

760 So.2d 903 (Fla. 2000) . . . . . . . . . . . . . . 79

Wright v. Florida,

474 U.S. 1094 (1986) . . . . . . . . . . . . . . . 1, 79

x

Wright v. State,

473 So. 2d 1277 (Fla. 1985),

cert. denied, 474 U.S. 1094 (1986) . . . . . . . . . . 11

Wright v. State,

581 So. 2d 882 (Fla. 1991) . . . . . . . . i, 12, 13, 32

Young v. State,

739 So.2d 553 (Fla. 1999) . . . . . . . . . . . . . . 79

Zuck v. Alabama,

588 F.2d 436 (5th Cir.),

cert. denied, 444 U.S. 833 (1979) . . . . . . . . . . 82

(PC-R1. 1017-56). At the time that he testified in October of 1988,

Dr. Krop had evaluated some 200 individuals who were capital

defendants. Jody Wright was one of three whose MMPI results were

completely within "normal" ranges. Dr. Krop found Jody Wright to be

an intact person with no signs of sexual deviancy or sociopathic

tendencies. Jody Wright did not fit the profile to which Dr. Krop

had become accustom.

1

This is the story of justice gone awry, a young man convicted

of a murder he did not commit, sentenced to death and left on death

Lima Page Smith was found stabbed to death at 4:15 pm. on (R.

1628). Joel Dale Wright (Jody) lived next door to Ms. Smith with his

family (R. 1583). Early in the police investigation, Jody was

interviewed and cleared after Charles Westberry confirmed that Jody

room couch (Douglas Depo. at 34).

Subsequently, Charles Westberry, while talking to his estranged

wife, changed his story and claimed Joel Dale Wright arrived at his

house much later and confessed the murder to him. The estranged wife

told the deputy sheriff who she was dating of this conversation.

After Charles was arrested and charged as an accessory to murder, he

agreed to testify against Jody in return for immunity (PC-R2. 2415-

certiorari said "this case comes down to Wright’s word against

Westberry’s." Wright v. Florida, 474 U.S. 1094, 1097

(1986)(Blackmun, J., dissenting).

evidence regarding Charles Westberry. Besides the disclosed immunity

on the accessory to murder charges, the prosecutor gave Charles "a

limited grant of immunity" regarding the illegal scrap metal business

that he and Jody had operated together (PC-R1. 756). Charles has

acknowledged that he was "scared of getting into trouble for this"

(PC-R1. 652). And because Paige had knowledge of the illegal

business, he was worried she may get into trouble too. This

additional immunity was not disclosed to defense counsel (PC-R1.

652). Moreover, the prosecutor met with Charles on a daily basis in

the week or so leading up to trial (PC-R1. 756, 758). The prosecutor

wrote out Charles’ answers to the questions that he intended to ask

at trial (PC-R1. 763, 766). The prosecutor then "gave it to Charles

Westberry prior to trial, asked him to review it, go over it, make

sure what was there was the truth." (PC-R1. 757). Charles was

instructed to return the written answers to the prosecutor prior to

taking the stand (PC-R1. 759). Charles remained in jail until a week

after his testimony when he was finally released (PC-R1. 701). In

1988, Charles testified that he had been given typed answers to read

over in preparing to testify at Jody’s trial (PC-R1. 670, 678). He

still had the documents when he was released from jail, but

subsequently was unable to find them (PC-R1. 669-70). The existence

of these written answers was not disclosed to defense counsel at

trial, and the written answers have never surfaced during the postconviction

process (PC-R1. 762).

2

17). On the basis of his testimony, Jody was convicted and sentenced

However, the jury never heard a wealth of evidence implicating

February 4, 1983, Henry Jackson and Clayton Strickland were roommates

and lived next door to Charlene Luce (PC-R2. 445, 2611). This was

"about a block away" from Ms. Smith’s residence (PC-R1. 965). On

2615-16). Jody Wright’s prosecuting attorney, James Dunning, had

represented Henry Jackson when Mr. Jackson was prosecuted for the

homicide (PC-R2. 2432). Mr. Jackson also had a burglary conviction

for burglarizing Earl Smith’s house which was across the street from

Ms. Smith’s residence (PC-R2. 2432, 2434-35).

stabbed by a right-handed person (R. 1739, 1816). Jody is lefthanded.

knife - "a sharp-edged weapon about, oh, a half-an-inch in width and

an eighth of an inch in thickness, and not particularly long" (R.

1822). Between 2:00 and 3:00 pm. on February 6, 1983, Clayton

Strickland sold Earl Smith a pocket knife for $5.00.

3

February 4th, Strickland approached Ms. Luce and told her that, even

Luce then, observed Jackson come outside into the yard brandishing a

Mr. Jackson was angry and was demanding money from Mr. Strickland

(PC-R2. 445).

On February 5, 1983, Wanda Brown, a mail carrier, observed Ms.

Smith outside her residence arguing with Mr. Strickland and Mr.

Jackson and motioning for them to move away with her hand (PC-R2.

447, 2558). Mr. Strickland then shook his arm at Ms. Smith (PC-R2.

447). When Mr. Strickland saw Ms. Brown in her postal jeep, he ran

in front of the vehicle forcing her to stop (PC-R2. 2559). He walked

up to the door of the vehicle and demanded to know if she had his

document "should have been given" to defense counsel because it

contained information that "may [be] considered [] favorable to the

Defense"(PC-R1. 724-25).

death as occurring between 5:00 p.m. and 9:00 p.m. on Saturday,

February 5th. It was only after Westberry changed his story on April

19th and claimed that Jody had confessed to doing the murder at 5:00

a.m. that the medical examiner expanded the time range to include

5:00 a.m. on Sunday, February 6th (R. 1852).

4

social security check (PC-R2. 2560). She indicated that "no, I don’t

have your check." He said "I need some money." She indicated that

she had no mail for the Jackson mailbox (PC-R2. 447). He asked Ms.

Brown to give him some money (PC-R2. 447). She became frightened by

his demeanor and drove away. "I could smell the liquor. And it - -

I was kind of scared, you know, I didn’t really trust either one of

them." (PC-R2. 2560). When she looked back she notice Ms. Smith

"making a motion like that for them to go off" (PC-R2. 2560). After

Ms. Brown heard about Ms. Smith’s murder, she called the sheriff’s

office and reported her observations. Two detectives went to her

After dark on the evening of February 5, 1983 (during the

period that the medical examiner gave as the range in which the

murder occurred), William Bartley observed Henry Jackson and Clayton

Strickland standing in the vacant lot next to Ms. Smith’s house,

abdomen.

5

Late in the afternoon on February 6, 1983, Kim Holt, a cashier

at a local supermarket, saw a man she identified as Henry Jackson in

her check out line. Mr. Jackson had fresh scratch marks on his face

and "what appeared to be blood on him, fresh blood" (PC-R2. 2583).

Ms. Holt was familiar with Jackson and the fact that he usually had

no money. (PC-R2. 444). He announced "I got money today" (PC-R2.

444). He paid Ms. Holt with a one hundred dollar bill and showed her

that he possessed another one (PC-R2. 2583). Mr. Jackson then asked

Ms. Holt if she knew that Ms. Smith had been killed (PC-R2. 444,

2583). As he was leaving, Ms. Holt noticed that it was 4:30 pm. (PCR2.

444).

Between 4:30 pm. and 5:00 pm., Charlene Luce was called over to

her fence by Henry Jackson who informed her that Ms. Smith had been

killed (PC-R2. 2621). When Ms. Luce asked "why her," Mr. Jackson

said that "Miss Smith told him that she didn’t kept [sic] money at

home" (PC-R2. 446). He also indicated that she once gave him a box

Smith. In response, "he just turned real red in the face, and he

looked at me real funny, and he turned and walked away" (PC-R2.

he had this statement prior to trial, but if he had it, he

"[c]ertainly" would have disclosed to defense counsel (PC-R1. 727).

In fact, Mr. Dunning acknowledged that he would have been obligated

to disclose it (Id.).

indicated the scratches were already present at 4:30 pm.

enforcement that she had witnessed an encounter between Strickland

and Ms. Smith on Saturday, February 5th.

6

2622). Ms. Luce gave the sheriff’s office a written statement

Sheriff officers interviewed Henry Jackson and Clayton

Strickland on February 10, 1983. According to Jackson, the scratches

on his face were from a fight Sunday night (February 6th) (PC-R1.

According to Jackson, "we went to bed early" on Saturday, February

5th. According to Strickland, "Henry and I had been drinking a lot

on Saturday and was pretty high. We went to bed around eight o’clock

I guess. I didn’t get up until Sunday morning and I made some coffee

for Henry and I. Henry and I stayed at the trailer all morning" (PCR1.

379).

In 1988, then Deputy Taylor Douglas testified that Jackson and

Strickland were eliminated as suspects when they each passed a

polygraph denying involvement in the murder ("And of course both of

Putnam County Sheriff.

police accounted for Jackson’s possession of money and his scratched

face because they determined that Jackson had done some tree

trimming. However when pressed, Taylor Douglas had nothing to

support this belief (PC-R1. 956). James Dunning testified that he

had been advised that the sheriff’s office had "substantiate[d] that

the money he had came from a Social Security check he had cashed, and

that the substance that was on him turned [out] to be paint as

opposed to blood (PC-R1. 721). Initially, Captain Miller said that

Jackson got the scratches while trimming trees. When confronted with

Jackson’s sworn statement, he acknowledged that Jackson’s under oath

statement indicated that "he got scratched at his sister’s" during a

fight (PC-R1. 1068). Captain Miller explained his previously stated

belief as the result of his failure to "refresh[] my memory with

7

them had agreed to take a polygraph with no, no problem with that.

And they ran very clean on the polygraph that neither of them was

involved with the Lima Paige Smith murder.")(PC-R1. 964). In denying

post-conviction relief, Judge Perry relied upon this testimony to

conclude that the evidence implicating Jackson and Strickland was

"highly speculative."

Wright was" polygraphed, but beyond that he was not sure. He

initially said as to Jackson and Strickland being polygraphed,

"Possibility" (Douglas Depo, at 35). After refreshing his

recollection, he listed those individuals who were polygraphed: Paul

House, Charles Westberry, Jody Wright and Denise Easter (Douglas Depo

at 39). Thus, the sole basis for excluding them as suspects,

these documents" (Id.). Of course, Jackson’s sworn statement

indicated that he got scratched Sunday night and did not explain how

Kim Holt saw the scratches Sunday afternoon.

forensic comparisons to the hair found on Ms. Smith’s body (PC-R1.

1003). No fingerprints comparisons were conducted between Jackson’s

and Strickland’s known prints and the unidentified prints of value

found at the crime scene (PC-R1. 1003, R. 2051).

8

None of the statements regarding Henry Jackson and Clayton

testified that he would have used these various statements at trial

had he been aware of them (PC-R1. 808).

As it was Jody’s jury heard none of the evidence implicating

Henry Jackson and Clayton Strickland. However, a forensic examiner

for FDLE testified that she found in a pubic hair combing from the

victim, "one brown hair present which demonstrated some

characteristics of caucasian pubic hair, but the hair was different

from the hairs in the pubic hair standard from Smith." (R. 2080).

The examiner compared this hair to known standards from Jody, "and

the bottom line that we have here is that whatever that pubic hair

was or whose ever it might have been, in the pubic hair found in the

pubic hair of Miss Smith, [the examiner] could not match it with Jody

Wright." (R. 2095). The examiner noted that the hair "demonstrated

some characteristics of caucasian pubic hair. Wright’s pubic hair

standard demonstrated characteristics of caucasian pubic hair. They

Ms. Smith’s known hair, and it was determined to not be hers. It

also could not be matched to Jody, but the examiner buried this fact

in language that was frequently nonsensical. The jury requested, but

was not permitted, a read back of this testimony (R. 2899-2908).

Smith’s stove (R. 2057). Jody acknowledged that he and Paul House

had previously gone into Ms. Smith’s home "to look around" (R. 2563).

Paul House confirmed that he and Jody had gone into Ms. Smith’s

residence in January of 1982 without permission when Ms. Smith was

not home (R. 2396).

9

were different because one was characteristic of pubic hair, the

Additionally, there were "[t]hree latent palm prints and one

latent impression" from the footboard of Miss Smith’s bed that were

never matched to any known fingerprints (R. 2051, Exh. 47). However,

comparisons with Jackson and Strickland were never made.

Jody maintained his innocence and did so when he testified in

courtroom listening to his testimony, realized that she had seen

someone looking like Jody walking on the road to Charles Westberry’s

residence at precisely the time Jody said (R. 2613-17). After the

evidence was closed, she contacted defense counsel and advised him

that she remembered driving some young people home after a church

function at approximately 12:30 a.m. on February 6, 1983, and seeing

someone who looked like Jody walking toward the trailer park where

Charles Westberry resided (PC-R2. 2446). Judge Perry refused to

10

allow the defense to call Ms. Waters as a witness saying it would

rendered the sequestration rule meaningless if a witness could confer

with others and then provide testimony which seemed almost "tailormade."

(R. 2645, 2678).

Accordingly, Jody Wright despite his innocence of the crime was

convicted of the murder of Lima Smith and sentenced to death.

before the 1988 evidentiary hearing, although the suspension was not

disclosed by Mr. Dunning at the time of the evidentiary hearing (PCR2.

1836, 2592, Exh. 45).

circuit judge in settlement of judicial inquiry which alleged

judicial improprieties (PC-R2. 2590-92, Exh. 44). The inquiry

concerned judicial misconduct in 1988 and 1989 involving improper ex

parte conduct and not displaying impartiality.

Ms. Lasko, the FDLE technician who had conducted an analysis of hair

found on Ms. Smith’s body and was unable to match it to Jody Wright.

The jury also asked for the testimony of Dr. Latimer, the medical

examiner who concluded the assailant was probably right-handed.

However, Judge Perry refused to provide the jury with the testimony

(R. 2899-2908).

11

On April 22, 1983, Joel Dale Wright was charged by indictment

in Putnam County with one count of first degree murder, one count of

sexual battery with great force, one count of burglary of a dwelling,

and one count of grand theft of the second degree (R. 5). On April

23, 1983, Howard Pearl was appointed to represent Mr. Wright (PC-R2.

Wright entered pleas of not guilty on all counts.

and on September 1, 1983, the jury returned guilty verdicts on each

On September 2, 1983, the penalty phase proceeding began.

Later that same day, the jury returned a recommendation of death.

Robert (Mac) McLeod. According to Charles Westberry, Mac McLeod

advised him he did not have to talk to Mr. Wright’s collateral

counsel (PC-R1. 230). After that conversation, Mr. Westberry refused

to talk to collateral counsel even though he had previously agreed to

do so (PC-R1. 146).

Also in 1988, Robert McLeod handled the capital trial in Randall

Scott Jones. At an evidentiary hearing in February of 2000, Robert

McLeod testified that as a result of ex parte contact with Judge

Perry, he prepared the sentencing findings that resulted in a

sentence of death. He indicated that he did the same thing in the

case of Manuel Colina who was also sentenced to death by Judge Perry.

Jones v. State, Case No. SC00-1492, Post-conviction ROA 572).

Colina’s sentence of death was reversed on appeal for other reasons.

Colina v. State, 570 So.2d 929 (Fla. 1990).

Another prosecutor at the 1988 Wright evidentiary hearing was John

Alexander. Judge Perry’s law clerk testified in an evidentiary

12

On September 23, 1983, Judge Perry imposed a sentence of death

with regard to the murder count, 99 years on the sexual battery, 15

years on the burglary, and 5 years on the grand theft.

Mr. Wright’s convictions and sentence of death were affirmed by

this Court in 1985; this Court found the exclusion of Kathy Waters’

testimony was error, but harmless. Wright v. State, 473 So. 2d 1277

(Fla. 1985), cert. denied, 474 U.S. 1094 (1986)(Blackmun, J., joined

by Brennan, and Marshall, JJ, dissenting regarding this Court’s

determination that the trial court’s decision to preclude Ms. Waters

as a defense witness was harmless error).

Mr. Wright thereafter sought relief pursuant to Fla. R. Crim.

P. 3.850 on February 22, 1988. An evidentiary hearing commenced

hearing in 1998 that Mr. Alexander on ex parte basis participated in

the 1989 drafting of sentencing findings imposing a death sentence

upon Richard Randolph. Randolph v. State, Case No. SC93675, Postconviction

ROA 5344). In fact, the State in 1998 stipulated that a

draft judgment and sentence came from the State Attorney’s file

(Randolph, Post-conviction ROA 5313).

its opinion affirming on appeal.

he presided over the case that he too was a special deputy sheriff in

Putnam County (Pellicer Depo. at 19). Special deputy appointments

13

On June 8, 1989, Judge Perry entered an order denying postconviction

relief. Judge Perry’s decision was premised upon a

factual finding that "Mr. Freddie Williams [Howard Pearl’s

investigator] testified that he was aware of the statements by Brown

Relying upon Taylor Douglas’ testimony that Jackson and Strickland

were eliminated as suspects when they passed polygraph examinations,

Judge Perry further stated: "Whether the statements were exculpatory

in nature is highly speculative and thus, the claim is legally

insufficient to support a claim under Brady" (581 So.2d at 883).

On June 22, 1989, Mr. Wright filed a motion for rehearing and a

motion to amend regarding newly discovered evidence regarding Howard

Pearl’s status as a special deputy sheriff. On August 21, 1989,

Judge Perry denied relief on the "Pearl" issue on the basis of the

decision by another judge in another case in which an evidentiary

were given to political allies of Sheriff Pellicer (Miller Depo. at

7). People like to have a "deputy card," "when they got stopped for

speeding they pulled card [sic], you know, Oh, are you a deputy

sheriff? Oh, yeah. Be careful, Sheriff, go ahead — a courtesy card,

still call it that." (Pellicer Depo. at 20).

14

Thereafter, Mr. Wright appealed to this Court. This Court,

quoting Judge Perry’s order verbatim, stated: "We find that the

trial court properly denied relief on each of the claims made in

Wright’s initial rule 3.850 motion." Wright v. State, 581 So.2d 882,

886 (Fla. 1991). However, this Court did reverse the denial of the

claim regarding whether Howard Pearl’s ability to provide effective

assistance was impaired because of his status as a special deputy.

The case was "remanded for an evidentiary hearing." 581 So.2d at

887.

On remand, the case was consolidated with other capital cases

in which Howard Pearl had been the state-paid defense counsel. This

Court appointed the Honorable B.J. Driver to presided over the

consolidated cases. A consolidated evidentiary hearing was held in

December of 1992 before Judge Driver.

Meanwhile, Mr. Wright’s collateral counsel had renewed a

Chapter 119 request on the Putnam County Sheriff’s Office. Counsel

was advised that additional records were being provided which had not

been provided in 1988 (PC-R2. 2690-91). These newly disclosed

documents provided additional Williams Rule evidence against Henry

15

Jackson and Clayton Strickland. In light of the new disclosures, Mr.

Wright filed an amended 3.850 (PC-R2. 115).

During the December, 1992, evidentiary hearing, Judge Driver

severed the matters raised in the amended 3.850 saying: "The Court

having been fully advised regarding Mr. Wright’s 3.850 claims which

warrant evidentiary development, this Court determines it is without

jurisdiction to address any matters other than Mr. Pearl’s status as

a special deputy sheriff, and therefore severs those other claims so

that they may be pursued in a court of competent jurisdiction." (PCR2.

475).

During the evidentiary hearing, it was learned that Judge Perry

had a special deputy appointment out of Duval, Volusia, and Orange

Counties. Judge Perry, who was called as a witness, did not recall

whether such an appointment had occurred in Putnam County (PC-R2.

1962).

After Judge Driver denied Mr. Wright’s claim regarding Mr.

Pearl’s status a special deputy, Mr. Wright chose not to immediately

appeal, and instead sought an immediate hearing on his other claims,

specifically his innocence (PC-R2. 2369). Mr. Wright also amended

his 3.850 to include a claim based upon Judge Perry’s status as a

special deputy sheriff (PC-R2. 480). However, Judge Driver refused

to preside over the matter saying it was outside the scope of his

appointment (PC-R2. 573). Subsequently after some delay, the case

into evidence at the December 1997 evidentiary hearing. Exh. 47.

16

was formally assigned to Judge Nichols on March 16, 1994 (PC-R2. 574,

575, 613).

Mr. Wright obtained permission for forensic testing of evidence

in the possession of the Putnam County Sheriff’s Office (PC-R2. 576,

2194). The tests proved inconclusive (PC-R2. 2195). Collateral

counsel then petitioned Judge Nichols for over a year seeking an

evidentiary hearing (PC-R2. 2193).

At that point, this Court rendered its decision in Teffeteller

v. Dugger, 676 So.2d 369 (Fla. 1996), finding that the consolidated

hearing in December of 1992 had been conducted in violation of due

process (PC-R2. 2193). In response, the State conceded in Mr.

Wright’s case that "there definitely will need to be an evidentiary

hearing." (PC-R2. 2195)

Meanwhile, CCR had learned in another Putnam County case

involving Manuel Colina that the Putnam County Sheriff’s Office had

failed to previously to properly respond to all Chapter 119 requests

(PC-R2. 704, 2194). Extensive Chapter 119 discovery was permitted,

motion to vacate was again amended to include the new disclosures.

The newly disclosed records included Judge Perry’s status as a

special deputy sheriff. Former Sheriff Walter Pellicer explained

17

that the card was one that could be pulled out to get out of a

speeding ticket or any other problem the possessor was having with

the Sheriff’s Department (Pellicer Depo. at 18-20). Captain Miller

explained that the cards were given "to political allies" of Sheriff

Pellicer (Miller Depo. at 7). Sheriff Pellicer testified that Howard

Pearl might have been a special deputy in Putnam County. He revealed

that Freddie Williams (Mr. Pearl’s investigator) was a bonded deputy

in Putnam County (Pellicer Depo. at 18).

The evidentiary hearing commenced in March of 1997, and was

concluded December 7-8, 1997. Mr. Wright called Freddie Williams as

a witness to support his claim that Judge Perry’s factual finding

(that Freddie Williams, as the defense’ investigator at the time of

trial, had seen the police reports concerning Jackson and Strickland)

was erroneous as a matter of fact. Mr. Williams specifically

testified that he did not see the police reports concerning Jackson

and Strickland until five years after Mr. Wright’s trial (PC-R2.

2526-36). The State objected to this testimony, arguing that right

or wrong Judge Perry’s finding was binding as law of the case

("regardless of whether Judge Perry may have been mistaken in his

interpretation of what this witness testified to in a prior hearing"

PC-R2. 2528). Judge Nichols struck the testimony and allowed Mr.

Wright only to proffer it for the record (PC-R2. 2533, 2535).

18

Howard Pearl also testified, as did Charlene Luce, Wanda Brown

and Kim Holt.

In order to expedite the case, the parties submitted oral

closings at the closing of the evidentiary hearing on December 8,

1997. Judge Nichols indicated that he planned to issue a ruling by

the end of the year.

With no decision nearly two years later, Mr. Wright submitted a

Notice of Supplemental Authority and Motion for Relief on September

27, 1999. In this motion, Mr. Wright set forth a number of relevant

and important decisions supporting his claims for a new trial. Mr.

Wright included a claim that pursuant to Jones v. State, 740 So.2d

520 (Fla. 1999), the delay in ruling denied Mr. Wright due process.

When still no action result, Mr. Wright petitioned this Court

for a writ of mandamus on May 25, 2000, nearly two and one half years

after the closing srgument. Wright v. State, Case No. SC00-1119. On

June 5, 2000, Judge Nichols issued his order denying Mr. Wright a new

trial.

In addressing Mr. Wright’s claim that he was deprived of an

adequate adversarial testing, Judge Nichols took two and a half years

to say:

3. Claim II as to "no adversarial testing", and

Claims VII and VIII are premised on the disclosure of

additional documents since the trial and the initial 3.850

hearing in 1991 are related. There is just no evidence

that the outcome of the Defendant’s trial would be

issuing his order, Judge Nichols failed to notice that the prior

evidentiary hearing to which he referred occurred in 1988, not 1991.

Then again, may be he did not obtain the full record and review it.

19

different. There is only speculation on the Defendant’s

part as to these claims.

of the primary claim Mr. Wright had advanced at the evidentiary

hearing and closing argument.

20

Ms. Smith, a seventy-five year old school teacher had lived

next door to the Wrights for many years (R. 1583). Joel Dale Wright

was born the seventh of eight on August 28, 1957 (R. 2968. PC-R1.

63). He and his family had always gotten along well with Ms. Smith,

despite Ms. Smith’s eccentricities (PC-R1. 66). Over the years, her

house had become piled with debris; this included newspapers,

groceries, empty cat and dog food containers, etc. (R. 1534). The

debris was between one and three feet deep throughout the house (R.

2305). The residence lacked running water (R. 1597). Frequently,

Ms. Smith would sit in her car as opposed to her house (R. 1611).

She would grade papers there. Sometimes she would just sit in the

car reading or eating. She generally left the back windows of her

house open so that her cats could go in and out unencumbered (R.

1612).

On February 6, 1983, at 4:15 p.m., the Putnam County Sheriff’s

Office received a call from Earl Smith, Ms. Smith’s brother. Mr.

Smith, who lived across the street from Ms. Smith, had just

discovered her body in her bedroom (R. 1628). Sheriff officers found

Ms. Smith’s body in a crevice (not over six inches wide R. 1600)

between the bed and the wall of her bedroom. Ms. Smith had twelve

stab wounds in the left side of her face and neck (R. 1739, 1816).

Strickland were not done.

acknowledged that one sale in mid-march of 1983 resulted in $1200 in

proceeds (R. 2183-95).

approximately thirty dollars in the poker game (R. 1874).

the trailer belonging to Allen Westberry, Charles’ brother. She

reported at Jody’s trial that she and Charles had gone to bed around

21

The stab wounds were consistent with a pocket knife (R. 1822).

Located on top of Ms. Smith’s exposed abdomen was a candy bar (R.

1728).

The evidence against Mr. Wright derived from three sources.

First, there was the presence of a fingerprint from Mr. Wright in Ms.

Smith’s house. Mr. Wright explained that he was her neighbor and had

Second, there was the testimony of Charles Westberry. Jody and

Charles had been friends who had started stealing scrap metal and

interviewed and explained that on the night of the homicide he had

he was locked out. He walked across town to Charles’s house where he

1:00 am. (R. 1925). Charles had gotten up at some point during the

night. When she awoke the next morning, Jody was asleep on the

living room couch. This was not an unusual occurrence. Jody had no

blood on his clothes that she observed.

Similarly, Allen Westberry testified that he saw Jody on the couch

at 7:00 a.m., and Beverly Westberry, Allen’s wife, saw Jody on the

couch when she got up at 6:30 am. (R. 1946, 1957). Neither noticed

anything looking like blood on his clothing.

have used a kitchen knife to slit Ms. Smith throat. In fact, Ms.

Smith had been stabbed twelve times with a pocketknife.

Originally, Charles had told Paige that Jody had arrived at

Charles’ trailer "covered with blood." Charles had thought Jody had

been in accident. Charles had said that Jody had showed him $243.00

in small bills. Subsequently at Jody’s trial, Charles reported

considerably less blood, and claimed Jody said he got $290.00 from

Ms. Smith’s purse as well as a jar of change. Due to the condition

of Ms. Smith’s house and the manner in which she lived, there was no

evidence that a specific amount of money or specific items were

missing.

22

months later, Charles had a conversation with his estranged wife,

Paige, who was dating a deputy sheriff. Charles indicated to his

estranged wife that Jody was making trouble for him: "he had a lot of

nerve to get him in trouble when Charles said he had enough shit to

put him under the jail." Charles then indicated to Paige that Jody

had confessed the murder of Lima Smith to him. However, his

description of how Jody had committed the murder matched newspaper

boyfriend, a deputy sheriff. Charles was arrested and charged as

accessory to murder. He was given immunity on the condition that he

testify against Jody.

Perkins had become angry with Jody Wright’s mother over her failure

to keep Jody and his brother away from his step-sister. So he told

her that he was going to make her sorry that she ever had those two

boys (PC-R2. 2587).

Jody’s claim the statement was in fact merely a statement invoking

silence and its introduction violated Miranda. Judge Perry said "the

Florida Supreme Court has held that allowing such statements to be

admitted at trial was harmless error, when, as in the instant case,

the improper statement was not the primary evidence linking the

Defendant to the crime, but rather cumulative to the evidence

presented by the key witness. [Citation.] Therefore, even if the

Defendant’s allegation of a Fifth Amendment violation is taken as

true, the Defendant’s claim is insufficient to merit relief." Wright

v. State, 581 So.2d at 884.

this evidence was Cynthia Kurkendall who the prosecutor was dating

and subsequently married (PC-R1. 773).

23

Third, a police officer, Walter Perkins, who was involved in

was alone with Officer Perkins and said to him: "If I confess to

this, I’ll die in the electric chair, if I don’t talk I stand a

During the trial, the prosecutor received a tip that two

obtained from Jody after Ms. Smith’s death and which they believed

was the glass money jar described by Charles as taken from Ms.

Smith’s home (PC-R1. 771-73). Mr. Pearl had a witness available to

identify the glass jar as a decanter that was a Wright family

heirloom, and the witness possessed the matching glasses to prove it

24

(PC-R1. 815-23). Mr. Pearl decided to present this evidence to

impeach Charles’ claim that Jody stole a glass jar filled with change

from Ms. Smith. Mr. Pearl presented the evidence that Jody had kept

money in this glass jar. He then forgot to present the testimony

establishing that the jar was a decanter with matching glasses that

had been in the Wright family for years (PC-R1. 815-23). The

prosecutor capitalized on Mr. Pearl’s error in his closing, arguing

that the glass jar was the one taken from Ms. Smith’s residence at

the time of the homicide (R. 2742).

In the defense’s case, Jody testified in his own behalf. A

spectator in the courtroom, Kathy Waters, heard Mr. Wright’s

description of his movements around town upon discovering that he was

locked out of his house. After the evidence was closed, she

contacted defense counsel and advised him that she remembered driving

some young people home after a church function at approximately 12:30

a.m. on February 6, 1983, and seeing someone who looked like Jody

walking toward the Westberry’s trailer. Judge Perry refused to allow

the defense to call Ms. Waters as a witness saying it would rendered

the sequestration rule meaningless if a witness could confer with

others and then provide testimony which seemed almost "tailor-made."

(R. 2678).

testified that he believed that the money came from tree trimming

(PC-R1. 956). Wanda Brown’s statement indicates that on Saturday a

social security check was not delivered to Henry Jackson (PC-R2.

447). And Henry Jackson’s statement indicates that the substance on

his face was blood, and that he got scratched in a fight on Sunday

night, apparently after Kim Holt observed the scratch marks on Sunday

25

Chapter 119 records were sought from the State Attorney’s

Office and the Putnam County Sheriff’s Department. On the basis of

the records disclosed, collateral counsel presented a Brady claim

based on a wealth of records in the State’s possession which

implicated Henry Jackson (a former client of James Dunning, the trial

prosecutor, who had a prior conviction for second degree murder and

for burglarized Earl Smith’s home across the street from Miss Smith)

and Clayton Strickland in the murder of Ms. Smith. In addition,

collateral counsel also challenged the effectiveness of Howard

Pearl’s trial representation.

In October of 1988, the trial judge, Judge Robert Perry held an

evidentiary hearing. At the evidentiary hearing the trial

prosecutor, James Dunning, was called to testify. Mr. Dunning

acknowledged that he had "defended Henry [Jackson] in a homicide case

back when [he] was a Public Defender" (PC-R1. 720). He recalled that

the Sheriff’s Office had eliminated Jackson as a suspect because

"they were able to substantiate that the money he had came from a

Social Security check he had cashed, and that the substance that was

afternoon (PC-R1. 378).

supported Mr. Pearl’s testimony that he did not receive the Luce,

Brown or Holt statements (PC-R1. 793-807).

26

Mr. Dunning acknowledged that the statement by Wanda Brown was

"something that [trial counsel] should have been given." (PC-R1.

724). He also testified that as to the Charlene Luce statement he

"would have furnished [trial counsel] with any statement relating to

the investigation," he was simply unsure whether he had the statement

prior to Mr. Wright’s trial (PC-R1. 727).

Mr. Dunning also testified that the way to know for certain

what statements had been provided to trial counsel was to inspect the

signed receipts. "The only was I would have of knowing would be to

go back to the receipts that would be, I believe, in the State

Attorney’s file that were signed by [trial counsel’s investigator]

and determine if that was one of the documents furnished" (PC-R1.

724). These receipts had been prepared by Mr. Dunning. "I made sure

that everything that the receipt said was there was there. I had

[trial counsel’s investigator] verify that, and I had him sign for

Mr. Dunning also acknowledged that Charles Westberry received

"a limited grant of immunity" for the illegal scrap metal business

(PC-R1. 756). Westberry testified that he was "scared of getting

into trouble for [scrap metal business]" (PC-R1. 645). He was also

27

"worried that if [he] got in trouble Paige would get in trouble" (PCR1.

652). When Mr. Dunning found out about the business prior to Mr.

Wright’s trial, Mr. Dunning questioned Westberry concerning it.

According to Westberry, Mr. Dunning told him he would not prosecute

him over the scrap metal business, but he never guaranteed Westberry

that he would not be prosecuted for stealing scrap metal and selling

it for profit. Westberry was scared at the time of trial and at the

time of the 1989 evidentiary hearing that he could still be

prosecuted for his actions (PC-R1. 653).

The additional immunity, which Mr. Dunning orally extended

apparently without Mr. Westberry’s full understanding, was given

after the formal written immunity agreement had been prepared and was

not reflected in it. Mr. Pearl testified that he "was never informed

by the State of any communication passing from Westberry to the State

or back concerning the theft of scrap metals."(PC-R1. 791). Further,

Mr Pearl was "never advised that [Westberry] was - - that any

prosecution or immunity for prosecution were being discussed with him

concerning that event."(PC-R1. 791).

Further, Mr. Pearl was not advised that Mr. Dunning had written

out Mr. Westberry’s written responses to questions and provided them

to Mr. Westberry (PC-R1. 830). Mr. Pearl did not know that such

statements of Mr. Westberry existed.

sister, when the decanter was handed over to Mr. Dunning during the

trial (PC-R1. 771-72). According to Mr. Dunning, he had seen Cynthia

"on several occasions [] at bars and so forth, had conversations with

her, knew her" (PC-R1. 773). Subsequently, he married Cynthia.

28

Mr. Pearl also testified that he had not received the

statements from Charlene Luce, Kim Holt and Wanda Brown (PC-R1. 793-

808). Mr. Pearl testified that these statements would have provided

him with "a truckload of leads" that he would have pursued and used

(PC-R1. 807).

Mr. Pearl also testified to what he described as a serious

lapse on his part during the trial. He testified regarding the

events during the trial leading to the production a glass decanter by

the jar Charles Westberry claimed Mr. Wright stole from Ms. Smith

(PC-R1. 816). Charlene Martinez indicated that one night when Jody

needed money he ran into his house and brought out the decanter

filled with change.

Once, this decanter surfaced Mr. Pearl learned that it in fact

was a Wright family heirloom. He "brought down from South Carolina a

Mrs. Wiggs . . . who was Jody’s [aunt], who identified that glass jar

as one having been bought by her together with a group of matching

glasses and given to Jody’s mother, which would have established

trial.

29

Mrs. Wiggs to the Wright residence and observed the matching glasses

in the cupboard where Jody’s mother had kept them (PC-R1. 818).

Based upon this, the prosecutor elected not to present Charlotte

Martinez to testify about the decanter she had provided the

prosecution. Mr. Pearl then decided to call her to present the fact

that Jody had access to money in his own house if he needed it and

that he acquired no unexplained infusion of cash (PC-R1. 819).

However after presenting Ms. Martinez’s testimony, Mr. Pearl failed

to call Mr. Wright’s aunt to identify the glass decanter and the

matching glasses. Regarding this failure Mr. Pearl testified:

I failed to prove, and I had the proof in my hand, that

jar was in fact the property of Jody’s mother. I failed

to do it. It was a lapse, a mistake. I just — I can’t

explain it to you. It is as if it passed out of my mind,

perhaps due to the pressure of other matters during the

trial. But I cannot explain it. It was inferior

performance.

Mr. Dunning brilliantly took advantage of that lapse

in closing arguments to argue to the jury that could have

been, or must have been the jar that Charles Westberry had

been talking about. And, therefore, I feel very badly

about it. I feel very much at fault about it. It was a

sorry performance on my part.

(PC-R1. 819-820).

There was also testimony from a deputy sheriff, Taylor Douglas,

that the basis for eliminating Henry Jackson and Clayton Strickland

they have never been produced pursuant to Chapter 119. And in March

of 1997, Taylor Douglas testified that polygraph exams were not given

to Henry Jackson and Clayton Strickland (Douglas Depo. at 39).

30

as suspects was that they provided each other with an alibi, they

went to their home early and slept. According to Deputy Douglas’

testimony in 1988, they each passed a polygraph ("And of course both

of them had agreed to take a polygraph with no, no problem with that.

And they ran very clean on the polygraph that neither of them was

Similarly, Captain Cliff Miller was called at the 1988

evidentiary hearing. During his testimony the following exchange

occurred:

Q Did you come up with any proof that Mr. Strickland

and/or Mr. Jackson did not kill Miss Smith?

A Their interviews, what other interviews we did,

coupled with the polygraph exam.

(PC-R1. 1071). Captain Miller claimed to recall that there was an

interview of someone from whom "Jackson said he got money [for]

cutting down a tree" (PC-R1. 1071). Captain Miller also believed

that he had found someone who said "Mr. Jackson was retained to cut

down a tree, and the scratches he received as a result of the tree"

(PC-R1. 1067). When confronted with Jackson’s own statement

indicating that scratches came from a fight the night of Sunday,

February 6th, Captain Miller retorted:

extensive Chapter 119 discovery, just as no polygraph examination of

either Jackson or Strickland has ever surfaced.

31

A We’re talking about five years of recollection. I

haven’t refreshed my memory with these documents. That

is, as I recall, that I remember the scratches, and I

thought he had gotten it from the tree. I stand

corrected.

(PC-R1. 1068). Captain Miller also acknowledged that he could not

find a statement "from the individual that had retained Jackson to

himself, conducted none of "the interviews with regard to Mr. Jackson

and Mr. Strickland" (PC-R1. 1066). Thus, he was forced to rely

entirely upon the reports of others:

Q So you’re relying on what other people told you

when you’re saying they were dead-ends?

A They take the results of their investigation and

bring it to me, and indicate their opinion. And I either

concur, or I direct them to go out and do some more. In

this issue I concurred.

(PC-R1. 1066).

Deputy Stout was also called at the 1988 evidentiary hearing.

During his testimony the following was elicited:

Q Okay. In that connection, what you found at the

house, was there anything to indicate one way or another

whether it was one or two people who had done the crime?

A I really don’t have an opinion one way or the

other.

32

Q Okay. So it’s basically just a void of evidence;

there’s no evidence one way or another to indicate whether

it’s one, two, or more?

A Any — any assertion on my part as to one person or

two would be absolute speculation based not on any hard

evidence that I saw in the residence.

* * *

Q Was hair from Mr. Jackson or Mr. Strickland

submitted to the lab?

A No, sir, I don’t believe it was.

Q Were the fingerprints of Mr. Jackson and Mr.

Strickland compared to fingerprints found in the house?

A I don’t think they were.

Q Was there any particular reason why that did not

occur?

A My understanding is I believe Mr. Jackson and Mr.

Strickland had been eliminated from the investigation

sometime prior to the necessity of sending the

fingerprints.

Q How were they eliminated?

A I believe by some investigation done by Mr.

Douglas.

Q Okay. Do you have any knowledge of precisely what

that investigation was and how they were eliminated?

A Everything that I have is secondhand memory of

elimination.

Q Did you ever see any reports?

A No, sir, I did not.

(PC-R1. 1001-02, 1003-04).

33

The undisclosed police reports implicating Henry Jackson and

Clayton Strickland were introduced into evidence at the 1988

evidentiary hearing. These included the statement by Charlene Luce

(reporting her observations of Jackson and Strickland on February 4th

and 6th), the a handwritten statement from Wanda Brown (regarding on

her February 5th observations of an encounter between Ms. Smith and

Clayton Strickland), and the sworn statement of Kimberly Holt

(describing her encounter with Jackson at around 4:30 p.m. on

February 6, 1983).

Also at the 1988 evidentiary hearing, Mr. Wright called William

Bartley as a witness. He had been a state witness at trial. No one

had asked him in 1983 if he had seen Jackson and/or Strickland near

Ms. Smith’s house around the time she was killed. However, he

testified in 1988 when asked that he recalled seeing Jackson and

Strickland standing in the empty lot next to Ms. Smith’s house on

Saturday night, February 5, 1983 (PC-R1. 1006-07). The medical

examiner had initially placed the time of death between 5:00 p.m. and

9:00 p.m., after Mr. Wright was arrested he expanded the time range

until 5:00 a.m. (R. 1852).

On June 8, 1989, Judge Perry entered an order denying 3.850

relief. First as to the undisclosed written responses from

Westberry, Judge Perry said:

The so-called script furnished to Westberry would not tend

to exonerate the Defendant. Both the former prosecutor

34

and Westberry testified at the evidentiary hearing that

the document contained a summary of Westberry’s prior

statements, in Westberry’s own words. . . . [T[he socalled

script is not Brady material and the Defendant’s

claim does not warrant relief.

Wright, 581 So.2d at 883.

As to the statements from Wanda Brown, Charlene Luce and Kim

Holt, Judge Perry stated:

The investigator for the Public Defender’s Office, Mr.

Freddie Williams, testified that he was aware of the

statements by Brown and Luce. . . . Mr. Williams and

defense counsel worked closely together and it is likely

that defense counsel was made aware of the statements

through Mr. Williams. Additionally, defense counsel

testified that he knew of the incident involving Ms. Holt

and, in fact, had interviewed her with Mr. Williams but

that he had never seen the statement given by Ms. Holt to

the authorities. . . . Whether the statements were

exculpatory in nature is highly speculative and, thus, the

claim is legally insufficient to support a claim under

Brady.

Wright, 581 So.2d at 883.

Judge Perry further found Mr. Pearl’s representation adequate

without addressing the failure to present the evidence establishing

that the glass jar had been in the Wright family for years. Judge

Perry also did not address whether, given his finding that Freddie

Williams, the investigator, had seen the reports concerning Jackson

and Strickland, trial counsel’s failure to investigate and present

the evidence implicating them in the murder was deficient

performance.

35

Mr. Wright timely filed a motion for rehearing which included a

request to amend the 3.850 motion on the basis of newly discovered

evidence that Mr. Pearl had been a special deputy sheriff at the time

of Mr. Wright’s trial. Judge Perry denied the claim on the basis of

another judge’s ruling in another case in which evidence had been

received. Judge Perry did not disclose that the Putnam County

Sheriff had provided him with a special deputy card which Sheriff

Pellicer gave to his political allies so that they could get out of

speeding tickets and other traffic stops.

On appeal to this Court, Judge Perry’s order was quoted

verbatim. Wright v. State, 581 So.2d 882, 883-886 (Fla. 1991). This

Court then stated: "We find that the trial court properly denied

relief on each of the claims made in Wright’s initial rule 3.850

motion." 581 So.2d at 886. There was no discussion of the claims

regarding Strickland and Jackson by this Court. However, this Court

did reverse the denial of the claim regarding whether, in light of

his status as a special deputy, Howard Pearl rendered ineffective

assistance of counsel. The case was "remanded for an evidentiary

hearing on whether Wright’s public defender’s service as a special

deputy sheriff affected his ability to provide effective legal

assistance." 581 So.2d at 887.

36

At the 1997 evidentiary hearing, Mr. Wright’s post-conviction

investigator, Jeff Walsh was called as a witness. He testified that

in 1991 following the remand he was handed a packet of material by

Captain Cliff Miller who said these are the documents that Mr. Wright

did not receive in 1988 (PC-R2. 2600-01). At that time, Mr. Walsh

was lead to believe that this packet of materials "were the only

records that CCR had not received before" (PC-R2. 2601). These

documents were introduced into evidence without objection as Exhibit

46 (PC-R2. 2600). These newly disclosed documents included police

reports regarding criminal investigations of Henry Jackson and

Clayton Strickland. One of the reports was regarding an incident in

1984 shortly after Mr. Wright’s trial. A elderly woman, Grace Moore,

had reported that after hiring Henry Jackson to do yard work, she was

awakened by him the next day with a bump on her head and the money in

her pantyhose gone (Exh. 46).

Subsequently in 1996 in connection with another Putnam County

case, State v. Colina, Mr. Walsh learned that the Putnam County

Sheriff’s Office had a systemic problem that had precluded it in the

past from fully disclosing all public records to the Office of the

Capital Collateral Representative (PC-R2. 2603). Based upon this new

information, Mr. Walsh made new public records requests of the Putnam

County Sheriff on Mr. Wright’s behalf. An accordion folder full of

additional records was subsequently disclosed (PC-R2. 2603). This

[Walter Perkins} to be lazy and unwilling to perform fully his

capabilities. Additionally, I feel that Mr. Perkins is not

trustworthy." (Exh. 47).

37

accordion file was introduced into evidence as Exhibit 47. Mr. Walsh

testified that he had examined this documents and ascertained that

CCR had not previously received any of the materials contained in

Exhibit 47 (PC-R2. 2604).

The records disclosed in 1996-97 and contained in Exhibit 47

included materials revealing that Walter Perkins was fired by the

Sheriff’s Department in January of 1986 because he was lazy and

another case. There, a woman named Dell Gillman, who had sought help

from the Sheriff’s Department regarding spousal abuse, claimed that

Officer Perkins’ report regarding his response to her call for help

was not truthful and "did in fact falsify the actual report." She

queried that his conduct raised the question of whether he would

engaged in similar behavior in other cases (Exh. 47).

In connection with this evidence concerning Walter Perkins, Mr

Wright called Bobbi Mixon, his sister, as a witness. She testified

during the winter proceeding Ms. Smith’s death Walter Perkins had

become angry with Mrs. Wright and threatened her:

And Walter came up there and said, told my mother - -

one of my brother’s was seeing one of his stepsisters, so

both my brother’s would go do [sic] down. And he came

down there and told my mother that he wanted her to make

38

my two brothers stop going down there to see his

stepsister.

And my mom in return told him that whenever his stepdad,

Julian, and I can’t remember the last name, told them

they couldn’t come down there any more she would tell

them. Walter didn’t live with them. And Walter said,

well, if you can’t keep those two boys from down there at

my sister’s house, my dad’s house, I’m going to make you

sorry you ever had them two boys. And my mother got very

angry. I mean, no one has the right to threaten you. And

she told Walter get off her property and not to come back

on her property unless he had a search warrant. And I

remember my mother was so upset. But, now she didn’t call

the police or anything, because Walter left as soon as she

told him too.

(PC-R2. 2587-88).

An evidence receipt form provided in 1997 showed that Taylor

Douglas obtained ink rolled fingerprints from Jody Wright on February

11, 1983, after a February 9th interview (Exhibit 47). Yet, a

comparison with the prints from Ms. Smith’s house was not made until

April 20, 1983, after Walter Perkins has assisted in his arrest.

Jail records revealed in 1997 included as part of Exhibit 47

contained a report that Jody had attempted suicide on the eve of

trial after his mother’s death (Exh. 47). Though this report

indicated that Freddie Williams was contacted, Mr. Williams testified

that he had no memory of the incident (PC-R2. 2536). And the matter

was never brought to the attention of the trial court in 1983.

Mr. Wright also sought to present testimony from Freddie

Williams that he saw the Jackson and Strickland documents in the

State Attorney’s Office for the first time five years after Mr.

39

Wright’s trial. However, the State’s objection to that testimony was

sustained, and Judge Nichols refused to consider the fact that the

statements of Wanda Brown, Charlene Luce and Kim Holt were not

disclosed to the defense.

Wanda Brown was called as a witness (PC-R2. 2557). She

testified to her encounter with Clayton Strickland on February 5,

1983, in front of Ms. Smith’s home. She testified that she also

witnessed an encounter between Mr. Strickland and Ms. Smith which

ended with Ms. Smith making hand motions for him to leave her alone

(PC-R2. 2560). Her testimony matched her February 7, 1983, statement

to the police, except that she remembered that Mr. Jackson was

present with Mr. Strickland (PC-R2. 2559). Near the end of Ms.

Brown’s testimony the State made objection that the testimony was

cumulatively to what had been presented in 1988 (PC-R2. 2560-61).

After much discussion, Judge Nichols allowed Mr. Wright’s counsel to

finish his examination without making a ruling on the State’s

objection (PC-R2. 2570).

Charlene Luce was called as a witness by Mr. Wright (PC-R2.

2609). She testified to her knowledge of Henry Jackson whom she had

known virtually all of her life in 1983. She remembered an incident

from when she was a little girl:

I remember Mrs. Jackson, she’d be put outside and it was

nothing for them to kick her, you know, just take and kick

her in the heinie, and grab her by the hair of the head

and tell her to get in there and cook them something to

40

eat, or you could hear them slapping her, her begging them

to quit, you know, not to hurt her.

(PC-R2. 2614-15). She remembered when Henry Jackson killed his

brother-in-law (PC-R2. 2615). She remembered what it was like to

meet up with Henry Jackson:

A Well, he would probably, you know, be all right,

but you just never knew, you know. It was just too risky

to take a chance. If you loaned him money, that might be

fine, you’d never expect to get it paid back. If you

helped him in any way, that was fine, but if you tried to

stand up to him, tell him you didn’t want to be bothered

with it, the next time he went on one of those drunk

binges you’d hear about it.

Q Were you afraid of Henry Jackson?

A To a certain extent, yes, sir.

(PC-R2. 2617).

When Mr. Wright’s counsel began to question Ms. Luce regarding

the events the weekend of Ms. Smith’s death, the State objected on

cumulative grounds (PC-R2. 2618). However, Judge Nichols allowed the

testimony (PC-R2. 2619).

Charlene Luce then testified to her encounters with Henry

Jackson on February 4th and 6th, 1983. Her testimony was in

conformity with her statement to the police in 1983 and her 1991

affidavit. As to her questioning of Henry as to whether he committed

the murder, her testimony was:

A Well, we chit-chatted there for a few minutes and

I said Henry did you do that?

Q And what was his reaction to that?

41

A And he, for some reason, he just turned real red

in the face, and he looked at me real funny, and he turned

and walked away. And I said, Henry I was just kidding

about that, I wasn’t, you know. And he never did answer.

Q Did he ever answer that question for you?

A No, sir.

(PC-R2. 2622).

Mr. Wright also called Kim Holt as a witness. At the time of

the hearing, her name was Kim Holt Holliman (PC-R2. 2579). She

testified concerning her observations of Henry Jackson as she had

reported in her February 28, 1983, statement (PC-R2. 2582). She

verified that it was from Mr. Jackson that she learned that Ms. Smith

was dead, and that at the time Mr. Jackson had "scratches on him and

had what appeared to be blood on him" (PC-R2. 2583).

Mr. Wright called Mildred Thomas as a witness. Ms. Thomas was

Kim Holt’s mother (PC-R2. 2506). The State objected to Ms. Thomas’

testimony regarding what Kim had told her in February of 1983. The

objection was sustained on hearsay grounds, but Mr. Wright was

permitted to proffer the testimony in support of his claim that the

testimony was being presented to show what information would have

been available to Mr. Pearl in 1983. Kim had told her mother:

that a man that usually came through her line []

scrounging around for money, had come through and he had

money, and that there were scratches on his hands and on

his throat. And I told her I said well, perhaps you

better tell the police about it, because we knew by then

that Ms. Page had been killed.

of public records that had previously not been provided to Mr.

Wright’s collateral counsel (PC-R2. 167).

42

(PC-R2. 2508).

Taylor Douglas’ deposition in 1997 was introduced as Exhibit 27

(PC-R2. 2520). At first, Taylor Douglas indicated that "Mr. Wright

was" polygraphed, but beyond that he was not sure. As to Jackson and

Strickland being polygraphed, he indicated, "Possibility" (Douglas

Depo, at 35). Taylor Douglas was then permitted to refresh his

recollection. Afterwards, he listed those individuals who in fact

were polygraphed: Paul House, Charles Westberry, Jody Wright and

Denise Easter (Douglas Depo at 39). Jackson and Strickland were not

on the list of those who had been polygraphed.

Mr. Wright called Glenna Logan Fox and her sister, Tammy Logan

concerning a September 9, 1980, incident that had been reported to

the police. The police report regarding the incident was introduced

into evidence as Exhibit 41 (PC-R2. 2543). Ms. Fox explained that

someone had been trying to break into her residence for several

months (PC-R2. 2549). She had tried to catch the person without

success. Then on September 9th, she awoke to the screen door shaking

"like somebody trying to shake it, trying to get [] the latch to come

unlatched" (PC-R2. 2552). She saw Henry Jackson and he told her he

needed a light for his cigarette and tried to get her to open the

disclosure of public records that had previously not been provided to

Mr. Wright’s collateral counsel (PC-R2. 169).

43

door (PC-R2 2552-53). She reported the incident to the police and

moved because of her fear of Jackson two weeks later (PC-R2. 2554).

Leon Wells was called as a witness by Mr. Wright (PC-R2.

brothers virtually all his life. Mr. Wells worked at a convenience

story in the early 80’s and had occasion to see Henry come into his

story on a regular basis, once or twice a week (PC-R2. 2574). Mr.

Wells recalled:

Q Did you ever see them fight?

A Oh yeah, I’ve seen them fight.

Q How many times do you think you’ve seen Henry

Jackson fight?

A In my lifetime 30 or 40.

Q Now, other than fighting did Henry have any other

qualities that make you remember him?

A Pertaining to his fighting, I think him and Leroy

both liked knives.

(PC-R2. 2575).

On January 29, 1981, Mr. Wells had to call the police to arrest

Henry Jackson (PC-R2. 2577). Mr. Wells explained as follows without

objection:

Q Do you recall the incident that led to this police

report dated January 29th, 1981?

disclosure of public records that had previously not been provided to

Mr. Wright’s collateral counsel (PC-R2. 174).

44

A It’s been a long time ago, but they were just

fighting, just like the report says, they were arguing

amongst one another and just wouldn’t leave the store.

Q Okay. Do you think you may have called the police

other times other than on this occasion on the Jacksons?

A I called them - - one that I remember distinctly

because it involved a gun and the one the one on Crill

Avenue where Henry had a gun on his daddy and they were

arguing over a bottle of wine.

Q Okay. Do you remember what happened in that

incident?

A They let him go, because he run around the

building before the cops got there and hid the gun and

they couldn’t find the gun. And they asked him to leave

and they left.

Q Now, is there anything about Henry Jackson that

you’d like to tell the court other than what you’ve said

today?

A Well, you can’t go under hearsay, but they were

terrible bad boys. Like I said I grew up with them most

of my life one way or another.

(PC-R2. 2577-78).

testified that she had lived at her address in Palatka for 39 years

(PC-R2. 2630). She indicated that she had been very familiar with

Henry Jackson. She recalled him killing his brother-in-law:

Q How did you know Henry Jackson did this shooting

in your neighborhood?

45

A It was a gunshot, the law was called and they took

him off.

Q Okay.

A And the brother-in-law was dead.

Q So, the neighbor across the street, who was his

brother-in-law, died?

A Right.

Q And Henry Jackson did not come back to the

neighborhood after that night for how long?

A I’m not sure. Quite a while, but I’m not sure.

(PC-R2. 2633).

Ms. Hill explained that she called the police regarding Henry

Jackson a number of times:

Q Now, did you ever call the police yourself as a

result of activity by Henry Jackson in your neighborhood?

A Yes.

Q Do you have any idea over the years he lived there

how many times that was?

A A lot. Twelve, 15 maybe.

* * *

Q And what was the most memorable occasion on which

you called the police?

A Most memorable occasion was the time that the shot

went through the front door.

Q Did you actually call the police that night?

A Yes.

* * *

46 also show that Henry Jackson was found dead on February 2, 1985,

after expressing complaint about shortness of breath and chest pains.

He was 39 years old (PC-R2. 188).

46

Q Did you ever see any other kinds of violence at

the Jacksons while you lived there?

A Yes.

Q Could you describe that?

A I saw his brother throw his mother out the

backdoor.

(PC-R2. 2633-35).

According to a police report admitted into evidence, Grace

Moore, with a listed age of 70, reported on May 29, 1984, that she

had Henry and Mike Jackson do some work for her. After she went to

bed that night and fell asleep, she was awakened by Henry Jackson the

next morning. "[S]he was laying on the floor with a bump on her

head" (PC-R2. 185). "She noticed $300.00 cash that was in her

The records received in 1996-97 that were introduced as Exhibit

47 contained a voluntary statement from Bobby Lou Hackney, age 18,

which was taken by Taylor Douglas. The statement concerned sexual

battery charges that had been made against him. Mr. Hackney was

formally arrested on the charges on April 30, 1981. Jim Dunning

filed an Announcement of No Information on May 15, 1981. Another

arrest report shows that Mr. Hackney was arrested for burglary on

seriously interviewed as a suspect or if so how he was eliminated.

considered as a suspect and if so how he was eliminated. See Israel

v. State, Case No. SC95873.

47

October 16, 1982. A commutation of Hackney’s resulting sentence for

petit theft shows that he was released on February 4, 1983. Another

arrest report shows an arrest on June 29, 1983, for burglary and

grand theft. Still another report shows another arrest for burglary

and grand theft on September 5, 1983. Deputy Jerry Vaughn recalled

in his deposition, Exhibit 36, that Bobby Hackney was involved in the

Also contained in Exhibit 47 is a handwritten note from Johnny

McClendon to Captain Miller. The note is poorly written and contains

many misspellings. It talks about trying to get a Ray man to confess

The September, 5, 1997, deposition of Walter Pellicer was

entered into evidence as Exhibit 40 (PC-R2. 2521). Mr. Pellicer had

been the Sheriff of Putnam County in 1983, at the time of Mr.

Wright’s trial, and in 1988, at the time of the evidentiary hearing

before Judge Perry. Former Sheriff Pellicer testified that Judge

Perry had been a special deputy sheriff in Putnam County at the time

of trial (Pellicer Depo. at 19). Former Sheriff Pellicer indicated

that he thought Howard Pearl, as well as Jim Dunning, had been

48

special deputies in Putnam County (Pellicer Depo. at 18). Former

Sheriff Pellicer further stated that Freddie Williams was a bonded

deputy in Putnam County (Pellicer Depo. at 18). Former Sheriff

Pellicer explained the benefit of having a special deputy

appointment, "when they got stopped for speeding they pulled card

[sic], you know, Oh, are you a deputy sheriff? Oh, yeah. Be

careful, Sheriff, go ahead — a courtesy card, still call it that"

(Pellicer Depo. at 20).

Judge Perry testified on December 18, 1992, as part of the

consolidated hearing that was subsequently voided by this Court in

Teffeteller v. Dugger, 676 So.2d 369 (Fla. 1996). In his testimony,

Judge Perry recalled having been placed "on the special deputy list

in Duval, Volusia, and perhaps Orange Counties" (PC-R2. 1962). Judge

Perry explained his understanding of the status associated with the

listing, "[t]hey were strictly a friendship thing based on my

personal acquaintance with the various sheriffs involved. And I

would assume when the sheriff was out of office that appointment was

also voided" (PC-R2. 1963). When asked whether he had such a

listing in Putnam County, Judge Perry stated, "[w]hen Mr. Pellicer

was sheriff, I may well have been" (PC-R2. 1962). Before and during

the 1997 hearing, Mr. Wright sought to obtain further testimony from

had placed Judge Perry on the special deputy list, but Judge Perry’s

ex parte contact with the State in the Richard Randolph capital

proceedings in the late 1989 had surfaced. Undersigned counsel did

not learn of ex parte contact in the case of Randall Scott Jones and

Manuel Colina until the year 2000. Since no public records have been

disclosed by the State to date reflecting ex parte contact at Mr.

Wright’s trial or during the 1988 evidentiary hearing, it was

necessary to ask Judge Perry about what apparently was his standard

practice.

49

the request and Judge Perry died before he could be called at the

evidentiary to testify regarding these matters.

The deposition of Clifford Miller was introduced into evidence

as Exhibit 19 (PC-R2. 2519). Captain Miller worked in the Sheriff’s

Office during Walter Pellicer’s tenure as sheriff. Captain Miller

explained that former Sheriff Pellicer had provided the special

deputy appointments "to political allies" (Miller Depo. at 7).

Howard Pearl was called at the 1997 evidentiary hearing. He

testified that he had received an appointment in Marion County as a

special deputy in 1972. The appointment was "still enforce when I

represented Mr. Wright" (PC-R2. 2437). Mr. Pearl was paying

insurance on the Marion County appointment (PC-R2. 2438). In

addition, Mr. Pearl had received a special deputy card from Volusia

County prior to Mr. Wright’s trial. He also had received a special

deputy card from Lake County prior to Mr. Wright’s trial (PC-R2.

50

2438). Neither Mr. Pearl nor Judge Perry advised Mr. Wright of any

of the special deputy appointments (PC-R2. 2439).

Mr. Pearl did distinguish between his Marion County status and

the special deputy appointments in Volusia and Lake Counties. The

Marion County appointment authorized him to carry a gun and required

insurance. According to Mr. Pearl, "I think to serve as a special

deputy sheriff in the circuit, Seventh Circuit, would constitute at

least the appearance of a conflict of interest, whereas being a

special deputy sheriff with no powers in Marion County would not"

(PC-R2. 2469). In fact, that was the reason he obtained the Marion

County appointment, one that was outside the Seventh Circuit. "I

considered that and completely rejected it" (PC-R2. 2469).

Mr. Pearl invoked discovery after his appointment to represent

Mr. Wright (PC-R2. 2439). In Mr. Wright’s case an unusual procedure

was followed. Either Mr. Pearl or his investigator, Freddie

Williams, was required to sign for each piece of paper received in

the course of discovery. The answer to the demand for discovery

containing all of the signed receipts was identified by Mr. Pearl and

introduced into evidence as Exhibit 13 (PC-R2. 2441-43). Mr. Pearl

testified that he did not receive the statements of Kim Holt, Wanda

Brown or Charlene Luce (PC-R2. 2421, 2427, 2428). Mr. Pearl was

unaware that William Bartley had seen Henry Jackson and Clayton

Strickland during the time period the murder may have happened

51

standing in the empty lot next to Ms. Smith’s house drinking (PC-R2.

2431). Mr. Pearl was unaware of Henry Jackson’s prior murder

conviction (PC-R2. 2432). He did not know of Jim Dunning’s

representation of Henry Jackson for the murder charges (PC-R2. 2432).

He did not know of Henry Jackson’s prior burglary conviction

regarding his entry into Earl Smith’s house, which was located across

the street from Ms. Smith (PC-R2. 2434).

At one point, Mr Pearl learned of Kim Holt and interviewed her.

At the time he interviewed her in August of 1983, she was unsure of

exactly when Mr. Jackson was in the store in February. Mr. Pearl

concluded that her observations were insignificant because he did not

have the benefit of her statement to law enforcement in February of

1983 pinpointing the time as 4:30 p.m., February 6th (PC-R2. 2418).

She did indicate to Mr. Pearl that she had been interviewed by

sheriff deputies. Mr. Pearl then confronted Captain Miller shortly

before trial, and Captain Miller assured him that Henry Jackson had

been eliminated as a suspect (PC-R2. 2419). Mr. Pearl testified:

I asked him if he had any earlier statements of Ms.

Holt, and if so would he please produce it so that he

could - - it could be furnished to me by way of discovery.

And his reply was that he reached behind his desk, to a

piece of furniture behind it, and he came back with a file

about an inch and a half, two inches thick, full of paper,

he said these are records of the investigations we made

when we were following up leads that we received. Most of

them had no value. We eliminated these persons as

suspects and therefore didn’t send it to the state

attorney and we considered those matters closed. He said

if you want to read through this file, here it is; take

52

it. I said I can’t do that. I’ve got a deal with

Dunning, I’ve got to sign for everything I get. I’m not

going to violate that agreement.

(PC-R2. 2419-20).

Mr. Pearl was advised of the bad blood between the Wright

family and Walter Perkins (PC-R2. 2437). Mr. Pearl made a feeble

attempt to question Officer Walter Perkins about the bad history.

When he met resistance, he withdrew his questions and apologized to

Officer Perkins in front of the jury (R. 2364-67). He made no effort

to call of any of Jody’s family members to explain the history and

the threats made by Officer Perkins to make Jody’s mother sorry that

Jody had ever been born (PC-R2. 2438).

Mr. Pearl acknowledged that he as a matter of standard practice

he inquired of potential jurors of any law enforcement connections

that they might have (PC-R2. 2435). He also indicated that he in

consultation with Mr. Wright would have no hesitation in peremptorily

excusing jurors with such ties (PC-R2. 2435). This in part would be

due to fear that the ties to law enforcement may unconscious

influence their decisionmaking (PC-R2. 2443-44)("One reason would be

that [the] ties to law enforcement would influence their judgment in

any case in which they sat").

Mr. Pearl testified that Mr. Wright was never given an

opportunity to object to his representation because he was a special

deputy sheriff (PC-R2. 2441). Mr. Pearl acknowledged that it was

53

important to him to keep a good relationship with law enforcement

(PC-R2. 2442)("I find that it’s very beneficial to make friends in

law enforcement, because they tend to cooperate with you").

Mr. Wright, himself, was called as a witness at the 1997

evidentiary hearing. He testified that he had no knowledge at the

time of trial that either Howard Pearl or Freddie Williams was a

special deputy sheriff (PC-R2. 2640). Had he known, Mr. Wright

indicated that he would have objected. Further, Mr. Wright testified

that he did not know at the time of trial or during the 1988

proceedings that Judge Perry was a special deputy sheriff in Putnam

County (PC-R2. 2641). Mr. Wright indicated had he know if would have

asked to disqualify him from the case. The State conducted no crossexamination

of Mr. Wright (PC-R2. 2641).

54

Specific findings of historical fact in the circuit court’s

resolution of Brady and ineffective assistant of counsel claims

following an evidentiary hearing are reviewed deferentially on

appeal. That means as to those findings this Court will accept them

as long as there is "competent and substantial evidence" to support

the circuit court’s finding of historical fact. However, the legal

determinations as reviewed de novo. In Stephens v. State, 748 So.2d

1028, 1034 (Fla. 1999), this Court explained that under the standard

enunciated in Strickland v. Washington, 466 U.S. 668 (1984), "both

the performance and prejudice prongs are mixed question of law and

fact." As a result, "alleged ineffective assistance of counsel

claim[s are] mixed question[s] of law and fact, subject to plenary

review." Stephens, 748 So.2d at 1034.

This is equality true of the standard of review of a Brady

claim. In United States v. Bagley, 473 U.S. 667, 682 (1985), the

Supreme Court adopted the Strickland prejudice prong standard as the

standard to review the materiality prong of a Brady claim. See Duest

v. Singletary, 967 F. 2d 472, 478 (11th Cir. 1992), vacated on other

grounds, 113 S. Ct. 1940, adhered to on remand, 997 F.2d 1326

(1993)("This issue presents a mixed question of law, reviewable de

novo."). Rogers v. State, ___ So.2d ___ (Fla. Feb. 15, 2001)("[t]he

55

standard requires an independent review of the legal question of

prejudice")(Slip Op. at 7).

56

1. Mr. Wright was deprived of a constitutionally adequate

adversarial testing at his trial. The prosecutor failed to disclose

a plethora of exculpatory evidence that both impeached the State’s

case against Mr. Wright, and also established a case against Henry

Jackson and Clayton Strickland. In addition, Mr. Wright’s trial

counsel failed to develop and present a wealth of exculpatory

evidence that both impeached the State’s case against Mr. Wright, and

also established that Henry Jackson and Clayton Strickland had motive

and opportunity to commit the murder of Ms. Smith. When the

exculpatory evidence that was not presented to the jury is considered

cumulatively and the proper constitutional standard is applied,

confidence in the outcome of the trial is undermined.

In addition, there is evidence that qualifies under Jones v.

State, 591 So.2d 911 (1991). This evidence of innocent must also be

considered cumulatively with the other exculpatory evidence that the

jury did not hear. When the evidence is properly evaluated, a new

trial is required.

2. Howard Pearl and Freddie Williams were bonded deputy

sheriff’s: Mr. Pearl in Marion County, Mr. Williams in Putnam

County. In addition, Mr. Pearl possessed special deputy cards

signaling his friendship and political loyalty to the sheriffs of

Volusia and Lake Counties. Under the circumstances and facts in Mr.

57

Wright’s case, the status enjoyed by Mr. Pearl and Mr. Williams

interfered with their ability to render effective representation on

behalf of Mr. Wright.

3. Judge Perry presided over Mr. Wright’s trial while he

possessed a special deputy card from Putnam County Sheriff Walter

Pellicer. This card represented Judge Perry’s alliance and

friendship with Sheriff Pellicer. In addition, Judge Perry regularly

engaged in ex parte contact with the State Attorney’s Office in

capital case in Putnam County. His standard practice was to have the

State draft the findings in support of death. Judge Perry was forced

to resign his position as a judge because of his improper ex parte

contact and his lack of impartiality. The fact that Judge Perry

presided over Mr. Wright’s 1983 trial and 1988 evidentiary hearing

deprived Mr. Wright of due process.

4. Judge Perry’s standard practice to have the State on an ex

parte basis draft the findings in support of a death sentence

violated due process and Florida law. Mr. Wright’s sentence of death

must be vacated.

5. Judge Nichols delay in ruling on Mr. Wright’s motion to

depose Judge Perry and his delay in ruling on the 3.850 denied Mr.

Wright his right to due process under Jones v. State, 740 So.2d 520

(Fla. 1999).

58

6. The circuit court erroneous ruled that "nothing has

occurred" that demonstrates that Eighth Amendment error occurred when

this Court struck an aggravating circumstances on direct appeal and

failed to conduct the requisite harmless error analysis required by

Sochor v. Florida, 504 U.S. 527 (1992).

the first Rule 3.850 motion filed by Mr. Wright. This Court affirmed

the denial of some of Mr. Wright’s claims in its 1991 opinion, but it

remanded for further proceedings on "whether Wright’s public

defender’s service as a special deputy sheriff affected his ability

to provide effective legal assistance." Wright v. State, 581 So.2d

at 887. During the proceeding on remand, it was established that the

Putnam County Sheriff’s Office had failed to previously disclose all

the public records Mr. Wright had requested in 1988.

59

Mr. Wright first alleged that he had been denied an adequate

Though the circuit court denied that claim, that denial was premised

upon false facts found after Mr. Wright had erroneously be denied

public records which refuted the false facts and provided additional

support for his claim. In the course of the proceedings below on

remand, Mr. Wright presented proof that the circuit court’s 1989

order denying Rule 3.850 relied upon false facts. Mr. Wright also

presented the public records containing exculpatory evidence that was

disclosed after the remand.

for further proceedings on a related claim concerning whether trial

counsel provided effective representation in light of his status as a

special deputy sheriff.

60

This Court was presented with similar circumstances in

Lightbourne v. State, 742 So.2d 238 (Fla. 1999). There, Mr.

Lightbourne had presented a claim in 1989 that he had been deprived

of an adequate adversarial testing because the State had failed to

disclose exculpatory evidence. The claim was denied and the denial

Lightbourne discovered new evidence that supported his claim. This

Court ruled that a cumulative analysis of Mr. Lightbourne’s claim

that he did not receive an adequate adversarial testing was required.

Mr. Wright was entitled to the same cumulative consideration

that was order in Lightbourne. Mr Wright did not receive that

cumulative consideration. Judge Nichols merely stated:

Claims II as to ‘no adversarial testing’, and Claims VII

and VIII are premised on the disclosure of additional

documents since the trial and the initial 3.850 hearing in

1991 are related. There is just no evidence that the

outcome of the Defendant’s would be different. There is

only mere speculation on the Defendant’s part as to these

claims.

(PC-R2. 1138-39). Judge Nichols then address Claim III separately.

Having sustained the State’s objection to Mr. Wright’s effort to

prove that Judge Perry’s earlier decision was premised upon the false

fact that the statements of Wanda Brown, Charlene Luce and Kim Holt

Kyles v. Whitley, 514 U.S. at 434 ("[t]he question is not whether the

defendant would have 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.").

61

were disclosed to the defense pre-trial, Judge Nichols honored the

false fact:

Claim III concerns newly discovered evidence, i.e. police

reports of incidents involving Henry Jackson and Clayton

Strickland. Both of these gentlemen were initially

interviewed by the Putnam County Sheriff’s Office and were

eliminated as suspects early on. The defense team knew of

these gentlemen well before trial. The fact that police

reports existed on these persons as to incidents of

loitering, trespass and other disturbances could have been

discovered by the trial team. There is simply no newly

discovered evidence. The defendant has only speculation,

but no evidence, that the results of this trial would have

been different.

(PC-R2. 1139).

The errors in this analysis are numerous. First, Judge Nichols

failed to apply the proper standard under Kyles v.Whitely, 514 U.S.

419 (1995) by requiring Mr. Wright to prove "that the outcome of the

Nichols found trial counsel’s lack of diligence in discovering

exculpatory evidence in the State’s possession relieved the

prosecutor’s of his obligation to disclose under Brady. This was

erroneous under Occhicone v. State, 768 So.2d 1037, 1042 (Fla. 2000),

and Strickler v. Greene, 527 U.S. 263 (1999). Finally, Judge Nichols

innocence, which neither the prosecutor failed to disclose at trial

nor defense counsel unreasonably failed to discover at trial, may

nonetheless warrant a new trial if the evidence probably would have

resulted in an acquittal if it had been known by the jury. This

burden of proof is obviously higher than the burden established in

Strickland v. Washington.

62

treated the undisclosed Brady as Jones evidence, and thus applied the

In the course of this Argument, Mr. Wright will address first

the evidence and information that was not considered by the circuit

court previously in 1989 that justifies revisiting the claim under

Lightbourne. He will then address why that cumulative analysis is

required and in turn requires that Mr. Wright be afforded a new

trial.

Mr. Wright presented below evidence establishing that Judge

Perry’s 1989 order denying Rule 3.850 relief was premised upon false

facts. These false facts were absolutely critical to the resolution

of Mr. Wright’s claim for a new trial. These false facts were

presumed correct by this Court on appeal, thereby tainting this

Court’s decision to affirm that part of Judge Perry’s order.

In addition, Mr. Wright was presented in 1991 and again in 1997

with previously undisclosed public records that had been requested in

pleading claims for relief. Frequently, the phrase "newly discovered

evidence" is employed to described two different types of evidence.

On the one hand, this phrase has been used to refer to evidence that

could not have been discovered sooner through the use of due

diligence. Under Rule 3.850 if diligence is present, the merits of

the underlying claim is before the court. Lightbourne.

On the other hand, the phrase has also been used to describe

evidence supporting a claim under Jones v. State. In those

circumstances, evidence of innocence, which was unavailable at trial,

warrants a new trial if the jury would have probably acquitted had it

heard the evidence.

In writing this brief, undersigned counsel has endeavored to not

use the ambiguous phrase "newly discovered evidence" since it has

engendered so much confusion in the past.

in the postconviction stage. Johnson v. Butterworth, 713 So. 2d 985

(Fla. 1998); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996). The

State has a duty to learn of evidence that might be favorable to Mr.

Wright which could form the basis for relief. Kyles v. Whitley, 514

U.S. 419 (1995).

63

obligations to disclose exculpatory evidence and to disclose public

court should have put Mr. Wright in the position he would have been

in had the evidence been disclosed when requested in 1988. By doing

otherwise, Judge Nichols rewarded the State for suppressing

exculpatory evidence.

Since the previously undisclosed public records further

supported Mr. Wright’s claims for a new trial, the previously

presented claim should have been revisited and re-evaluated in light

of the newly disclosed evidence. Lightbourne. All of the

64

exculpatory evidence should have been considered cumulatively with

the evidence presented in 1988.

Freddie Williams was Howard Pearl’s investigator. He was

called as a witness in 1988, and he testified concerning his

knowledge of the statements of Wanda Brown, Charlene Luce and Kim

Holt. Judge Perry relied on Mr. Williams’ testimony to deny Mr.

Wright’s claim that exculpatory evidence was not disclosed by the

prosecutor. In 1989, Judge Perry made the following factual

determination:

The investigator for the Public Defender’s Office, Mr.

Freddie Williams, testified that he was aware of the

statements by Brown and Luce. . . . Mr. Williams and

defense counsel worked closely together and it is likely

that defense counsel was made aware of the statements

through Mr. Williams.

Wright, 581 So.2d at 883.

However, that was never in fact Freddie Williams’ testimony.

Judge Perry cited to a page in the transcript where Freddie Williams

said he had seen the documents in the State Attorney’s Office. A

full reading of the transcript should have revealed that Mr. Williams

was referring to the fact that he saw the documents in the State

Attorney’s Office while preparing to testify for the 1988 evidentiary

hearing a full five years after Mr. Wright had been convicted. But

because Judge Perry had made such an explicit factual determination

supported by a page of the transcript taken out of context, this

65

Court found itself bound by the factual determination on appeal.

Stephens v. State, 748 So.2d at 1034.

On remand, Mr. Wright presented an affidavit from Mr. Williams

clearly stating that the factual determination made by Judge Perry

was not true. At the December 1997 hearing, Mr. Wright called Mr.

Williams to the witness stand and during his testimony attempted to

elicit testimony from Mr. Williams regarding the fact that he had not

seen the three statements in question until five years after the

trial. The State objected to the testimony arguing right or wrong it

was barred by Judge Perry’s explicit finding to the contrary (PC-R2.

533)("regardless of whether [Judge Perry] may have been mistaken

about the specific interpretation of what this witness testified to

[in a prior hearing]"). The State asserted that the actual truth did

not matter given that:

[Judge Perry’s] order was affirmed by the supreme court

and I have reviewed the briefs on appeal, and this very

argument that’s being made now about Judge Perry being

mistaken about his interpretation of what this witness

said, was argued by the defense in their briefs, and the

supreme court apparently did not find it very noteworthy,

because they adopted Judge Perry’s order.

(PC-R2. 2530-31). Judge Nichols sustained the objection and refused

to consider the fact that Judge Perry’s finding was false (PC-R2.

2532)("I’m going to uphold the objection. I’m going to sustain the

objection). Mr. Wright was forced to merely proffer Mr. Williams’

testimony in this regard. On proffer, Mr. Williams specifically

66

testified that he did see the police reports concerning Jackson and

Strickland until five year’s after Mr. Wright’s trial (PC-R2. 2526-

36).

This Court has stated "Truth is critical in the operation of

our judicial system. . . ." The Florida Bar v. Feinberg, 760 So.2d

933, 939 (Fla. 2000); The Florida Bar v. Cox, ___ So.2d ___, Case No.

SC96217 (Fla. May 17, 2001). Yet at the State’s urging below, Judge

Nichols ruled in essence that the truth did not matter. Judge Perry

had made the factual determination that Freddie Williams had seen the

exculpatory statements of Wanda Brown, Charlene Luce and Kim Holt

before the trial, and regardless of the truth, that factual

determination was binding on Mr. Wright.

Of course, Mr. Wright had challenged this factual determination

in this Court in the prior appeal. He asserted that the finding was

squarely contradicted by Howard Pearl’s testimony, and even by Jim

Dunning’s testimony. And he asserted that the finding was a

misreading of Freddie Williams’ testimony. But, the State did not

then concede the point. It argued that the factual determination was

one within Judge Perry’s discretion to make. And this Court

implicitly accepted that argument. Stephens v. State, 748 So.2d at

1034.

On remand, the State argued that this Court’s application of

the standards of appellate review precluded Mr. Wright from

67

presenting the truth. And equally important, the State argued that

Judge Nichols was precluded from considering the truth. And

astonishingly, Judge Nichols agreed and refuse to permit Mr. Wright

to introduce the simple truth that the statements in question were

never disclosed to the Mr. Wright’s defense team before or during his

trial.

The time has come for the truth, which this Court has said "is

critical to the operation of our judicial system," to matter in Mr.

Wright’s case. The statements of Wanda Brown, Charlene Luce, and Kim

Holt were not disclosed as even the trial prosecutor recognized they

should have been. Those statements must be finally considered and

evaluated cumulatively with the other exculpatory evidence that the

jury did not hear in order to ascertain whether confidence is

undermined in the outcome.

At the 1988 evidentiary hearing, both Taylor Douglas and

Captain Miller testified that Henry Jackson and Clayton Strickland

were excluded as suspects and shown to be dead leads when they passed

polygraph examinations. In 1989, Judge Perry relied upon that

testimony when he concluded:

Whether the [Brown, Luce and Holt] statements were

exculpatory in nature is highly speculative and, thus, the

claim is legally insufficient to support a claim under

Brady.

Wright, 581 So.2d at 883.

68

However in 1997, Taylor Douglas acknowledged that Jackson and

Strickland did not take polygraphs and thus were not cleared in that

fashion. Initially, Taylor Douglas indicated that he knew "Mr.

Wright was" polygraphed, but beyond that he was not sure. As to

Jackson and Strickland being polygraphed, he indicated it was a

"[p]ossibility" (Douglas Depo, at 35). Taylor Douglas was then

permitted to refresh his recollection. Afterwards, he identified

those individuals who were polygraphed as Paul House, Charles

Westberry, Jody Wright and Denise Easter (Douglas Depo at 39). Thus,

the sole basis for excluding them as suspects, according to the 1988

testimony, was revealed to be nonexistent. Judge Perry relied upon a

false fact to conclude that Jackson and Strickland had been

eliminated as suspects.

In addition, the Putnam County Sheriff’s Office provided Mr.

Wright’s collateral counsel in 1991 and again in 1996-97 with public

records that had not been previously provided. The situation here is

virtually identical to that in Provenzano v. State, 616 So. 2d 428,

430 (Fla. 1993), where, this Court stated:

Our remand after Provenzano’s initial 3.850 motion was

designed to put Provenzano in the same position he would

have been in if the files had been disclosed when first

requested. Provenzano, 561 So. 2d at 549. Given that

Provenzano’s ineffectiveness claims have arisen as a

direct result of the disclosure of the file, we find that

they are timely raised.

69

Provenzano v. State, 616 So. 2d at 430-31. See Ventura v. State, 673

So.2d 479, 481 (Fla. 1996)("The State cannot fail to furnish relevant

information and then argue that the claim need not be heard on its

merits because of an asserted procedural default that was caused by

the State’s failure to act").

Since the circumstances here are identical to those which arose

in Provenzano, the result must be the same. Mr. Wright must be put

in the position he would have been put in if the files had been

disclosed when requested. If the State had disclosed the Chapter 119

material when first requested, Mr. Wright would have obtained the

cumulative consideration of all of the allegedly Brady material.

Therefore, he must receive that cumulative consideration now.

Judge Nichols concluded that the previously undisclosed

evidence could have been found by trial counsel. Therefore, he did

not analysis the evidence as Brady material at all. However, this

analysis was error under Strickler v. Greene. Occhicone v. State,

768 So.2d at 1042.

Judge Nichols also said it was Mr. Wright burden to use the

previously undisclosed evidence to prove that the result of the trial

would have been different. That is too is the wrong standard. The

proper standard is whether the evidence undermines confidence in the

outcome of the trial. Rogers v. State. This is something less than

more likely than not. Kyles v. Whitley; Strickland v. Washington.

70

Finally, Judge Nichols failed to do the detailed analysis of

each bit of the evidence and consider whether the evidence considered

cumulatively undermined confidence in the outcome as set forth in

Kyles v. Whitley. Judge Nichols never even discussed the evidence,

let only consider it cumulatively. He simply said Mr. Wright had

only presented speculation.

The United States Supreme Court has explained:

... a fair trial is one which evidence

subject to adversarial testing is presented to

an impartial tribunal for resolution of issues

defined in advance of the proceeding.

Strickland v. Washington, 466 U.S. 668, 685 (1984). In order to

insure that an adversarial testing, and hence a fair trial, occur,

certain obligations are imposed upon both the prosecutor and defense

counsel. The 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). Defense

counsel is obligated "to bring to bear such skill and knowledge as

will render the trial a reliable adversarial testing process."

Strickland, 466 U.S. at 685. Where either or both fail in their

obligations, a new trial is required if confidence is undermined in

the outcome. Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986).

defense attorney failed in their respective obligations. A wealth of

favorable evidence was not disclosed by the prosecutor. And trial

counsel has testified that he provided "inferior performance" when he

had "a lapse" and made "a mistake" and forgot to present the evidence

establishing that the glass decanter was a Wright family heirloom

(PC-R1. 820). Trial counsel also neglected to present the testimony

that Officer Walter Perkins had threatened Mrs. Wright saying "I’m

going to make you sorry you ever had them two boys" (PC-R2. 2587).

standard as the proper measure for determining the materiality of the

nondisclosure of exculpatory evidence. Thus, whether the alleged

error is the prosecutor’s failure to disclose exculpatory evidence or

the defense attorney’s failure to adequately represent the defendant,

reversal is required when confidence is undermined in the outcome.

71

Here, Mr. Wright was denied a reliable adversarial testing.

The jury never heard the considerable and compelling evidence that

would have implicated Jackson and Strickland in the murder, and

further evidence exculpating Mr. Wright. Whether the prosecutor

failed to disclose this significant and material evidence or whether

the defense counsel failed to do his job, the record is clear that

ensure that a miscarriage of justice [did] not occur," Bagley, 473

Here, confidence must be undermined in the outcome since the jury did

not hear the evidence. Rogers v. State; Garcia v. State, 622 So.2d

1325, 1331 (Fla. 1993).

Evidence favorable to the defense of which the jury was unaware

warrants a new trial when it creates a reasonable probability that

72

the outcome of the guilt and/or capital sentencing trial would have

been different. Garcia v. State, 622 So. 2d at 1330-31. 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.

This is true whether the evidence was unpresented because of the

prosecution’s failure to disclose or because of trial counsel’s

deficient performance.

Though error may arise from individual instances of

nondisclosure and/or deficient performance, proper constitutional

analysis requires consideration of the cumulative effect of the

individual nondisclosures in order to insure that the criminal

defendant receives "a fair trial, understood as a trial resulting in

a verdict worthy of confidence." Kyles, 514 U.S. at 434. The proper

analysis cannot be conducted when suppression of exculpatory evidence

continues or when, despite due diligence, the evidence of the

prejudicial effect of the nondisclosure does not surface until later.

The analysis must be conducted when all of the exculpatory evidence

which the jury did not know becomes known. Lightbourne.

disclosed be the State before Mr. Wright’s trial included the

following:

Jackson had been present when the encounters took place.

73

a. Wanda Brown’s statement describing the encounter

she observed between Ms. Smith and Clayton Strickland on the day she

b. Kim Holt’s statement describing her observations

of Henry Jackson’s physical and financial condition when he announced

that Ms. Smith was dead at a time when her death was not common

knowledge, in fact the police had just been notified of the discovery

of her body.

c. Charlene Luce’s statement describing Henry

Jackson’s threatening behavior while having a knife poised in his

right hand on the day before the homicide, and additionally her

observations of his behavior and demeanor after the murder when she

asked him if he had killed Ms. Smith.

d. Henry Jackson’s criminal history including a

conviction for a homicide and a conviction for a burglary of a

residence the victim’s brother which was located across the street

from the victim’s residence where she was killed.

e. The police report concerning Glenna Fox’

observation of Henry Jackson attempt to enter her home unlawfully at

2:00 a.m. when she was home alone.

Jackson’s fondness for knives (PC-R2. 2575).

that impeached the reliability of law enforcement’s criminal

investigation is exculpatory evidence that must be disclosed to the

defense. Kyles v. Whitley, 514 U.S. at 446 ("the defense could . . .

have attacked the reliability of the investigation in failing to

consider [another suspect’s] possible guilt and in tolerating (if not

countenancing) serious possibilities that incriminating evidence had

been planted").

criminal investigation. Kyles.

74

f. The police report concerning Leon Wells’ call

g. The police report concerning Ella Hill’s twelve

to fifteen complaints to the police about Henry Jackson’s violent

behavior.

h. Police reports concerning Bobby Hackney which

demonstrated that despite his criminal history he was not seriously

i. A letter from Johnny McClendon regarding his

efforts to get Ray (Connie Ray Israel) to confess to the crime,

despite no records of a criminal investigation of Connie Ray Israel

even though he had a history of raping and robbing elderly women in

j. Jim Dunning’s undisclosed decision not to

prosecute Charles Westberry for his theft of scrap metal and his

coaching and conflicting accounts clearly was clearly [evidence]

favorable to [the defendant]." Rogers v. State, Slip op. at 24.

Kyles v. Whitley, 514 U.S. at 446.

Kyles v. Whitley, 514 U.S. at 446.

75

dealing in the sale of stolen property in return for his testimony

against Jody Wright.

k. The typed answers to his anticipated questions

that Jim Dunning provided Charles Westberry to study in order to

prepare in advance of his trial testimony and the numerous and nearly

daily coaching sessions that Mr. Dunning had with Mr. Westberry in

l. The police report concerning Dell Gillman’s

allegation that Officer Walter Perkins had falsified a police report

and her concern that he would engage in similar behavior in other

m. The fact that Jody Wright’s fingerprints had been

obtained on February 11, 1983, but no comparison to the prints from

the crime scene was made until after Officer Walter Perkins helped

n. The fact that there was no documentation of law

enforcement of ever checking out Henry Jackson’s story of how he

Kyles v. Whitley, 514 U.S. at 446.

Kyles v. Whitley, 514 U.S. at 446.

Kyles v. Whitley, 514 U.S. at 446.

investigation, it provides substantial evidence that Henry Jackson

76

obtained the money observed by Kim Holt and how he obtained the

o. The fact that the fingerprints of Henry Jackson

and/or Clayton Strickland were never compared to the prints lifted

p. The fact that hair was never obtained from Henry

Jackson and/or Clayton Strickland and compared to the unidentified

Moreover the disclosure of this evidence would have lead to the

discovery by defense counsel that a witness called by the State at

trial, William Bartley, observed Henry Jackson and Clayton Strickland

standing in the empty lot next to Ms. Smith’s house just hours after

Wanda Brown observed Ms. Smith shake her fist at them. William

Bartley indicated that this observation was just after dark on the

evening of February 5, 1983 (PC-R1. 1006-07). Interestingly, the

medical examiner’s initial estimate of the time of death was between

and Clayton Strickland committed the murder and lied to police about

the activities on the evening of February 5, 1983.

dissent from the denial of certiorari review, the prosecutor used the

glass jar to bolster Charles Westberry’s credibility (R. 2742).

good effect information that evidence may have been planted or that

the police investigation was unreliable.

77

available evidence that defense counsel knew of and should have

presented, but failed to, included the following:

a. The fact that the glass decanter identified by

Charlotte Martinez was a Wright family heirloom and not the glass jar

that Charles Westberry claimed Jody Wright took from Ms. Smith’s

b. The fact that Walter Perkins, a police officer,

who testified that Jody Wright made an incriminating statement, had

told Jody’s mother, Mrs. Wright months before, that he was "going to

c. The fact that Jody Wright was suicidal over his

mother’s death on the eve of his trial.

d. After learning that Kim Holt had provided a

statement to law enforcement, Howard Pearl had confronted Captain

Miller, but had refused Captain’s Miller offer to look at the Kim

Holt statement. Thus he failed to learn and present Kim Holt’s

78

observations of Henry Jackson at the precise time that the police

were responding to call and discovering the body.

e. Trial counsel failed to learn and present the

fact that Charles Westberry was fearful that either himself or his

wife could be prosecuted and sent to jail for stealing and selling

scrap metal.

f. Trial counsel failed to present the fact that

Westberry’s initial description to Paige of how Jody had committed

the murder matched newspaper accounts, not the evidence from the

scene.

In Kyles v. Whitley, the Supreme Court explained:

The fourth and final aspect of Bagley materiality to be

stressed here is its definition in terms of suppressed

evidence considered collectively, not item-by-item.

Kyles, 514 U.S. at 437.

The Court demonstrated how the analysis should be conducted by

doing it in Kyles:

In evaluating the weight of all these evidentiary items,

it bears mention that they would not have functioned as

mere isolated bits of good luck for Kyles. Their combined

force in attacking the process by which the police

gathered evidence and assembled the case would have

complemented, and have been complemented by, the testimony

actually offered by Kyles’s friends and family to show

that Beanie had framed Kyles. Exposure to Beanie’s own

words, even through cross-examination of the police

officer, would have made the defense’s case more plausible

and reduced its vulnerability to credibility attack.

Johnny Burns, for example, was subjected to sharp cross-

79

examination after testifying that he had seen Beanie

change the license plate on the LTD, that he walked in on

Beanie stooping near the stove in Kyles’s kitchen, that he

had seen Beanie with handguns of various calibers,

including a .32, and that he was testifying for the

defense even though Beanie was his "best friend." On each

of these points, Burns’s testimony would have been

consistent with the withheld evidence: that Beanie had

spoken of Burns to the police as his "partner," had

admitted to changing the LTD’s license plate, had attended

Sunday dinner at Kyles’s apartment, and had a history of

violent crime, rendering his use of guns more likely.

With this information, the defense could have challenged

the prosecution’s good faith on at least some of the

points of cross-examination mentioned and could have

elicited police testimony to blunt the effect of the

attack on Burns.

Justice Scalia suggests that we should "gauge"

Burns’s credibility by observing that the state judge

presiding over Kyles’s post-conviction proceeding did not

find Burns’s testimony in that proceeding to be

convincing, and by noting that Burns has since been

convicted for killing Beanie. Of course, neither

observation could possibly have affected the jury’s

appraisal of Burns’s credibility at the time of Kyles’s

trials.

Kyles, 514 U.S. at 449 n. 19 (citations omitted).

In Mr. Wright’s case, the undisclosed exculpatory evidence was

central to the theory of defense at the guilt phase. Mr. Wright’s

defense was that someone else did it. He testified in his own behalf

that he did not commit the murder. The undisclosed evidence provided

an indication who had committed the murder. It demonstrated that

Jackson and Strickland had the opportunity and subsequently behaved

in a fashion consistent with guilt. They had an encounter with Ms.

Smith on the afternoon of February 5th while they were looking for

80

money. She rebuffed them. Henry Jackson was known for his bad

temper, particularly when drunk. According to Wanda Brown, he and

Clayton Strickland were drunk. They were observed drinking more

alcohol in the empty lot next to Ms. Smith’s house during the precise

time period that the medical examiner estimated was the time of

death. Henry Jackson had unexplained knowledge of the homicide the

next afternoon. He also possessed scratches on his face at a time

that was inconsistent with the explanation he gave in his subsequent

statement to law enforcement. And in his statement, Clayton

Strickland misrepresented the last time he saw Ms. Smith. Strickland

said he had last seen Ms. Smith the Tuesday or Wednesday before her

death, not the day of her death as observed by Wanda Brown. Both

Jackson’s and Strickland’s statements were also contradicted by

Bartley’s observation of them after dark on February 5th.

The unpresented evidence that the jury did not hear would have

demonstrated the woefully inadequate investigation by law

enforcement. It would have established a motive on the part of

Officer Walter Perkins, a member of the investigation team who had a

checkered past, to frame Jody Wright for this murder. The

unpresented evidence when considered as a whole demonstrated that law

enforcement conducted no real investigation into Henry Jackson or

Clayton Strickland, despite having sworn statements that contradicted

Jackson’s and Strickland’s statements. Despite Jackson’s criminal

19th (the arrest of Charles Westberry), no fingerprint comparisons

were made at all. Law enforcement was purportedly baffled and

stumped by the murder.

individuals suspected of a crime, then Jody Wright’s sworn testimony

would have precluded him from having spent the last eighteen years on

death row for a crime he did not do.

81

history, there was no fingerprint comparison or hair sample

committed by only one assailant, it could just as easily have been

two (PC-R1. 1001-02). Yet, Jackson and Strickland were discarded as

suspects without one shred of admissible evidence to justify

generally to conduct a reliable investigation of any of the suspects,

In addition, the State’s case against Jody Wright was dependent

upon the testimony of Charles Westberry. As noted by Justice

Blackmun, "this case comes down to Wright’s word against

Westberry’s." Wright v. Florida, 474 U.S. at 1097. Yet, Mr.

Westberry was very afraid of going to jail for stealing and selling

scrap metal. He was also afraid that his wife, Paige, may go to jail

for this as well. He was told by Jim Dunning that he would not be

prosecuted for this in return for his testimony against Jody Wright.

This was impeachment not disclosed by the State. The jury did not

because after Mr. Pearl obtained the proof of the decanter’s origins,

Mr. Dunning chose not to present it. It was only after Mr. Pearl’s

"sorry performance" that Mr. Dunning had the opening to make the

argument that he knew was false (PC-R1. 819-20).

82

learn that Jim Dunning was meeting with Charles Westberry almost

daily to prepare him for testfying and that he provided Westberry

with Westberry’s answers to the questions that he would be asking.

This constituted impeachment vividly demonstrating that even Jim

Dunning was unsure that Charles Westberry could remember his answers,

supposedly the truth, without having them written down to study for

several weeks before the trial.

This must all be evaluated cumulatively with the glaring

failure of trial counsel to present the evidence establishing that

the glass decanter, which surfaced in the midst of trial, was a

Wright family heirloom and not the glass jar that Westberry claimed

was taken from Ms. Smith’s house. Jim Dunning, the prosecutor,

argued that the existence of the glass jar was corroboration of

Additionally, this Court on direct appeal found the exclusion

of Kathy Waters’ testimony to be harmless error. She claimed to have

observed someone matching Jody Wright’s build walking on the highway

in the spot and at the time that Jody Wright testified that he was

there walking. Judge Perry excluded the evidence because Kathy

Waters had not been sequestered and he described her testimony as

of Jody Wright’s guilt. The question under Kyles is not whether more

likely than not the jury would have had a reasonable doubt. The

question is whether confidence is shaken in the reliability of the

jury’s determination that it possessed no reasonable doubt in light

of the evidence discussed herein which was unknown to the jury.

83

seemingly "tailored-made" (R. 2645, 2678). That is because it was

corroborative of Jody’s testimony and in turn inconsistent with

Westberry’s. In evaluating the cumulative impact of the undisclosed

and unpresented evidence, consideration must be given to exclusion of

her testimony.

Confidence in the outcome of Mr. Wright’s trial clearly must be

undermined by the unpresented evidence which was relevant and

material to Mr. Wright’s guilt of first degree murder. Here,

exculpatory evidence that was known either to State or to defnse

counsel did not reach the jury. As to some of the evidence, the

prosecution denied the defense the information necessary to alert

counsel to the avenues worthy of investigation and presentation to

the jury. And as to some of the evidence, defense counsel failed to

provide effective representation and insure an adversarial testing.

As a result, no constitutionally adequate adversarial testing

much more than a reasonable probability of a different outcome. Mr.

Wright was convicted and sentenced without a constitutionally

adequate adversarial testing.

84

This Court recognized in Jones v. State, 591 So.2d 911 (Fla.

1991), that where neither the prosecutor nor the defense attorney

violated there constitutional obligations in relationship to evidence

the existence of which was unknown at trial, a new trial is warrant

if the previously unknown evidence would probably have produced an

acquittal had the evidence been known by the jury. Where such

evidence of innocence would probably have produced a different

result, a new trial is required.

Impeachment evidence may qualify as under Jones v. State as

evidence of innocence that may establish a basis for Rule 3.850

relief. As stated in State v. Robinson, 711 So.2d 619, 623 (Fla. 2d

DCA 1998):

Historically, newly discovered evidence in the form

of impeachment evidence was considered insufficient as a

matter of law to warrant a new trial. [Citations omitted]

Recently, however, this rule of impeachment evidence

has been expanded. Florida courts now are willing to

consider newly discovered ‘impeachment’ evidence as

sufficient to grant a new trial in certain limited

circumstances. In Jones, the supreme court stated: ‘[A]n

evaluation of the weight to be accorded the [newly

discovered] evidence includes whether it goes to the

merits of the case or whether it constitutes impeachment

evidence.’ [Citations omitted].

Evidence of evidence which qualifies under Jones v. State as a basis

for granting a new trial must be considered cumulatively in deciding

living alone who was rape and murdered by Connie Ray Israel. See

Israel v. State, Case No. SC95873.

85

whether in fact a new trial is warranted. State v. Gunsby, 670 So.2d

920 (Fla. 1996).

Here, the evidence which qualifies under Jones includes:

a. A 1986 memorandum terminating Officer Perkins

employment as a law enforcement officer wherein Paul Usina stated "I

have found [Walter Perkins} to be lazy and unwilling to perform fully

his capabilities. Additionally, I feel that Mr. Perkins is not

trustworthy." (Exh. 47).

b. A police report indicating that Grace Moore, with

a listed age of 70, complained on May 29, 1984, that after she had

Henry and Mike Jackson do some work for her, she went to bed and fell

asleep only to find when awakened by Henry Jackson that"she was

laying on the floor with a bump on her head" and "$300.00 cash that

was in her pantyhose [that] she was wearing was gone" (PC-R2. 185).

c. Police reports from 1983 through 1985, regarding

Clayton Hughes, an identified suspect in the homicide and a witness

against Mr. Wright (PC-R1. 548; Miller Depo. 21, 23; Stout Depo. 4,

8), showing arrests for burglaries, assaults with knives, and sexual

86

In analyzing the prejudicial impact of the Brady evidence,

Strickland evidence, and Jones evidence, the evidence must be

evaluated cumulatively in deciding whether a new trial is warranted.

This Court in Jones v. State, 709 So.2d 512 (Fla. 1998), and

reaffirmed in Lightbourne, made it clear that the cumulative analysis

is in fact legally required where a Brady claim, an ineffective

assistance claim, and/or a Jones v. State claim are presented in a

3.850 motion. In State v. Gunsby, this Court ordered a new trial in

Rule 3.850 proceedings because of the cumulative effects of Brady

violations, ineffective assistance of counsel, and/or Jones evidence

of innocence using the following analysis:

Gunsby raises a number of issues in which he contends that

he is entitle to a new trial, two of which we find to be

dispositive. First, he argues that the State’s erroneous

withholding of exculpatory evidence entitles him to a new

trial. Second, he asserts that he is entitled to a new

trial because new evidence reflects that the State’s key

witnesses at trial gave false testimony in order to

implicate him in a murder he did not commit and to hide

the true identity of the murderer.

* * *

Nevertheless, when we consider the cumulative effect

of the testimony presented at the 3.850 hearing and the

admitted Brady violations on the part of the State, we are

compelled to find, under the unique circumstances of this

case, that confidence in the outcome of Gunsby’s original

trial has been undermined and that a reasonable

probability exists of a different outcome. Cf. Cherry v.

State, 659 So.2d 1069 (Fla. 1995)(cumulative effect of

numerous errors in counsel’s performance may constitute

prejudice); Harvey v. Dugger, 656 So.2d 1253 (Fla.

1995)(same). Consequently, we find that we must reverse

87

the trial judge’s order denying Gunsby’s motion to vacate

his conviction.

Gunsby, 670 So.2d at 923-24 (emphasis added). See Young v. State,

739 So.2d 553 (Fla. 1999). This Court held in Lightbourne v.

State, 742 So.2d at 247 that a cumulative analysis of Mr.

Lightbourne’s Brady claim and his newly discovered evidence was

required. This means Mr. Wright’s claims require cumulative

consideration of all previously pleaded claims that Mr. Wright did

not receive an adequate adversarial testing because his jury did not

hear favorable and exculpatory evidence. The claims presented

previously must be evaluated cumulatively with the evidence presented

herein. Way v. State, 760 So.2d 903 (Fla. 2000). If considering the

claims cumulatively results in a loss of confidence in the

reliability of the outcome, relief is warranted. Young v. State;

Kyles v. Whitley.

The State’s case against Mr. Wright was based upon testimony of

Mr. Westberry. Justice Blackmun in his dissent from the denial of a

writ of certiorari said "this case comes down to Wright’s word

against Westberry’s." Wright v. Florida, 474 U.S. 1094, 1097

(1986)(Blackmun, J., dissenting). As outlined above the evidence the

jury did not hear because the prosecutor and the defense attorney

failed to comply with their constitutional obligations, already

undermines confidence in the outcome. But when combined with the

fact that Officer Perkins was fired because he was "untrustworthy,"

88

It is even more clear that Mr. Wright’s conviction is not worthy of

confidence. When cumulative consideration is given to all the

evidence of Mr. Wright’s innocence, it is clear that the jury would

have had a reasonable doubt and that Mr. Wright must be afforded a

new trial. The order denying 3.850 relief failed to conduct the

requisite cumulative analysis and must be reversed.

89

Mr. Wright’s conviction violated the laws and constitution of

the State of Florida and the United States of America due to trial

counsel’s undisclosed status as a special deputy sheriff, and due to

his investigator’s undisclosed status. Howard Pearl was as a bonded

special deputy sheriff in Marion County. His investigator, Freddie

Williams, according to the Putnam County Sheriff, Walter Pellicer,

was a bonded special deputy in Putnam County. Mr. Pearl received a

benefit from the Marion County Sheriff, he received the authority to

carry a gun. Freddie Williams received the same benefit in Putnam

County. The right to carry a gun was a benefit that could be revoked

at any time. The privilege to carry a gun and Mr. Pearl’s status as

a deputy sheriff depended entirely on remaining in good favor with

the Sheriff of Marion County. His investigator’s privilege depended

entirely on remaining in good favor with Walter Pellicer, the Sheriff

of Putnam County. To keep in the good graces of these sheriffs, Mr.

Pearl and Mr. Williams had to serve two masters, the Sheriff of

Marion County, and the Sheriff of Putnam County, the chief law

90

enforcement officer of those counties and Jody Wright, the indigent

client charged with capital murder in Putnam County.

Mr. Wright’s defense team was burdened with an undisclosed

conflict that interfered with the defense’s ability to represent Mr.

Wright. This denied Jody Wright his right to counsel as guaranteed

by the Sixth and Fourteenth Amendment to the United States

Constitution.

A defendant is deprived of the Sixth Amendment right to counsel

where (i) counsel faced an actual conflict of interest, and (ii) that

conflict "adversely affected" counsel’s representation of the

defendant. Strickland v. Washington, 466 U.S. 668, 692 (1984)

(quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); LoConte v.

Dugger, 847 F.2d 745, 754 (11th Cir.), cert. denied, 488 U.S. 958

(1988); see also United States v. Khoury, 901 F.2d 948 (11th Cir.

1990), modified on other grounds upon denial of rehearing, 910 F.2d

713 (11th Cir. 1990); (absent a knowing, voluntary waiver, defendant

is entitled to representation free of actual conflict), modified on

other grounds upon denial of rehearing, 910 F.2d 713 (11th Cir.

1990).

Because the right to counsel’s undivided loyalty "is among

those `constitutional rights so basic to a fair trial, . . . [its]

infraction can never be treated as harmless error.’" Holloway v.

Arkansas, 435 U.S. 475, 489 (1978) (citing Chapman v. California, 386

91

U.S. 18, 23 (1967)). Defense counsel is guilty of an actual conflict

of interest when he "owes duties to a party whose interests are

adverse to those of the defendant." Zuck v. Alabama, 588 F.2d 436,

439 (5th Cir.), cert. denied, 444 U.S. 833 (1979).

In United States v. Tatum, 943 F.2d 370, 375 (4th Cir. 1991),

the court noted the overlapping nature of the "actual conflict" and

"adverse effect" prongs of the Sixth Amendment analysis. Tatum, 943

F.2d at 375-76. There, the court stated:

[an attorney’s] representation of conflicting interests .

. . is not always as apparent as when he formally

represents two parties who have hostile interests. He may

harbor substantial personal interests which conflict with

the clear objective of his representation of the client,

or his continuing duty to former clients may interfere

with his consideration of all facts and options for his

current client. When the attorney is actively engaged in

legal representation which requires him to account to two

masters, an actual conflict exists when it can be shown

that he took action on behalf of one. The effect of his

action of necessity will adversely affect the appropriate

defense of the other. Moreover, an adverse effect may not

always be revealed from a review of the affirmative

actions taken. Rather, the failure to take actions that

are clearly suggested from the circumstances can be as

revealing. Thus, the failure of defense counsel to crossexamine

a prosecution witness whose testimony is material

. . . can be considered to be [an] actual lapse[] in the

defense.

Id. at 376 (emphasis added).

Not only was Mr. Pearl a bonded special deputy in Marion

County, he also was on the special deputy lists in Volusia and Lake

Counties. Obviously, the sheriff’s departments of Marion, Lake, and

Volusia counties of the State of Florida are entities with interests

92

adverse to Mr. Wright. Even if this Court were to consider only Mr.

Pearl’s deputy sheriff status in Marion County, his law enforcement

responsibilities extended from Marion County into Volusia County --

where he served in the Capital Division of the Public Defender’s

office. Under Fla. Statutes Secs. 23.12, et seq., Florida has

enacted an overall law enforcement scheme which coordinated mutual

cooperation among law enforcement agencies throughout the State.

Mutual aid agreements for voluntary cooperation and requested

assistance encourage members of any law enforcement agency to render

assistance outside their own jurisdiction. In so doing, all the

privileges, powers and immunities granted to law enforcement officers

-- whether paid, volunteer or auxiliary -- within their own

jurisdiction are retained and apply with equal effect in other

jurisdictions.

Former Sheriff Pellicer explained the benefit of having a

special deputy appointment (Mr. Pearl’s status in Volusia and Lake

Counties), "when they got stopped for speeding they pulled card

[sic], you know, Oh, are you a deputy sheriff? Oh, yeah. Be

careful, Sheriff, go ahead — a courtesy card, still call it that"

(Pellicer Depo. at 20). According to Captain Miller, the special

deputy lists were for political allies of the elected sheriff.

Former Sheriff Pellicer further stated that Freddie Williams

was a bonded deputy in Putnam County (Pellicer Depo. at 18). Howard

93

Pearl, himself, said it would have been a conflict to have been a

bonded special deputy in any of the counties of the Seventh Circuit.

According to Mr. Pearl, "I think to serve as a special deputy sheriff

in the circuit, Seventh Circuit, would constitute at least the

appearance of a conflict of interest, whereas being a special deputy

sheriff with no powers in Marion County would not" (PC-R2. 2469). In

fact, that was the reason he obtained the Marion County appointment,

one that was outside the Seventh Circuit. "I considered that and

completely rejected it" (PC-R2. 2469). Yet, Freddie Williams was a

bonded special deputy in Putnam County according to Sheriff Pellicer.

Mr. Pearl acknowledged that he as a matter of standard practice

he inquired of potential jurors of any law enforcement connections

that they might have (PC-R2. 2435). In consultation with Mr. Wright,

he would excuse jurors with such ties (PC-R2. 2435). This in part

was because ties to law enforcement may unconscious influence their

decisionmaking (PC-R2. 2443-44)("One reason would be that [the] ties

to law enforcement would influence their judgment in any case in

which they sat").

In this case, Mr. Pearl apologized to Walter Perkins in front

of the jury during his cross-examination after Mr. Perkins denied

having a bad relationship with the Wright family. Rather than

believe his client and his client’s family, Mr. Pearl abandoned the

line of questioning and apologized to his fellow law enforcement

94

officer. Mr. Pearl allowed his loyalty to the State to overshadow

his responsibility to Mr. Wright by abandoning his effort to impeach

Walter Perkins, the very man who had threatened Jody Wright’s mother

by telling her he would make her sorry her two sons were ever born.

Since Mr. Pearl was laboring under an undisclosed conflict as was his

investigator, no decision can be the result of any valid strategy.

Similarly when speaking to Captain Miller about the undisclosed

statement of Kim Holt, Mr. Pearl blindly accepted Captain Miller’s

assurance that Henry Jackson had been eliminated as a dead lead. Mr.

Pearl and Mr. Williams were willing to abandon any challenge to law

enforcement’s investigation into Ms. Smith’s homicide out of loyalty

to the Sheriff’s Office.

Because of Mr. Pearl’s status as a special deputy sheriff and

because of his investigator’s bonded deputy status, Jody Wright was

denied his right to counsel with unfettered loyalty to him as

guaranteed by the Sixth and Fourteenth Amendments to the United

States Constitution. As part their status as good ole boys who were

part of the law enforcement community, Mr. Pearl’s judgment and Mr.

Williams’ judgment was clouded and the ability to provide effective

assistance to Jody Wright in the circumstances here was impaired.

The United States Supreme Court recognized:

(i)n certain Sixth Amendment contexts, prejudice is

presumed. . . . Prejudice, in these circumstances is so

likely that case-by-case inquiry into prejudice is not

worth the cost.

95

Strickland v. Washington, 466 U.S. 668, 692 (1984).

Under this standard, a conflict of interest is subjected to a

"similar, though more limited, presumption of prejudice" than the per

se presumption. Strickland, 466 U.S. 692. Under Cuyler v. Sullivan,

446 U.S. 335, 350 (1980) prejudice is presumed if Mr. Wright

demonstrates that Mr. Pearl (1) "actively represented conflicting

interests" and (2) the "actual conflict of interest affected his

lawyer’s performance." The phraseology assumes the conflict arises

from conflicting service as a lawyer. But here, Mr. Pearl was both a

lawyer and a person with a license to carry a gun that was dependent

on staying in the good graces of law enforcement officials. Mr.

Williams was similar burdened by the two hats he wore. Mr. Pearl

himself said had the special deputy status been in Putnam County it

would have been improper. The question thus, has to be did his

desire to carry a gun and the resulting ties to law enforcement have

an actual and visibly adverse effect on his performance as Mr.

Wright’s counsel. Here, Mr. Pearl’s cross-examination of Walter

Perkins demonstrates an overarching desire to stay in good graces

with law enforcement to the detriment of his client, Jody Wright. So

too, Mr. Pearl’s reaction when he learned that he had not been

provided Kim Holt’s statement. The Sixth, Eighth and Fourteenth

Amendments must mean that a criminal defendant is entitled counsel

with undivided loyalty.

96

Mr. Pearl and Mr. Williams failed to investigate the adequacy

of police procedures, crime scene analysis or any other official

procedure. Mr. Pearl acknowledged that he did not challenge the

credibility of the police officers even though the criminal

investigation in this case was abysmal. This is reflects an adverse

interest and adverse effect. This is the conflict of interest under

Cuyler v. Sullivan, 446 U.S. 335 (1980). Mr. Wright was entitled to

know that his defense counsel was a deputy sheriff, be it honorary,

special or actual. Mr. Wright as he testified was not told about

this status and he would have fired Howard Pearl had he been advised.

97

It is a fundamental precept of our justice system that "[t]he

Due Process Clause entitles a person to an impartial and

disinterested tribunal in both civil and criminal cases." Marshall

v. Jerrico, Inc., 446 U.S. 238, 242 (1980). The right to an

right guarantees of our Constitution. See, e.g. In Re Murchison, 349

U.S. 133 (1955); Marhsall, 446 U.S. at 242; Bracey v. Gramley, 520

U.S. 899 (1997). See also Porter v. Singletary, 49 F.3d 1483, 1487-

88 (11th Cir. 1995) ("[t]he law is well-established that a

fundamental tenet of due process is a fair and impartial tribunal").

As Justice Scalia recently wrote for a unanimous Supreme Court, "[a]

criminal defendant tried by a partial judge is entitled to have his

conviction set aside, no matter how strong the evidence against him."

Edwards v. Balisok, 117 S.Ct. 1584, 1588 (1997). See also Sullivan

v. Louisiana, 508 U.S. 275, 279 (1993) (while "most constitutional

errors have been held amenable to harmless-error analysis, . . . some

98

Ohio, 273 U.S. 510 (1927), for proposition that "trial by a biased

judge" is error that always invalidates the conviction). This

fundamental principle stems from the paramount constitutional precept

that "some constitutional rights [are] so basic to a fair trial that

their infraction can never be treated as harmless error." Chapman v.

California, 386 U.S. 18, 23 (1966), and "[t]he right to an impartial

adjudicator, be it judge or jury, is such a right." Gray v.

Mississippi, 481 U.S. 648, 668 (1987). See also Johnson v. United

States, 117 S.Ct. 1544, 1550-51 (1997) ("[w]e have found structural

errors only in a very limited class of cases" and citing "lack of an

impartial trial judge" as such error); Brecht v. Abrahamson, 507 U.S.

619, 629 (1993) (structural defects "require[] automatic reversal of

the conviction because [it] infect[s] the entire trial process");

Arizona v. Fulminante, 499 U.S. 279, 290 (1990) ("Chapman

specifically noted three constitutional errors that could not be

categorized as harmless error: using a coerced confession against a

defendant in a criminal trial, depriving a defendant of counsel, and

trying a defendant before a biased judge").

In Fulminante, Chief Justice Rehnquist explained that the types

of trial error to which a harmless error analysis can be properly and

constitutionally applied can be "qualitatively assessed in the

context of other evidence presented in order to determine whether its

admission was harmless beyond a reasonable doubt." Arizona v.

99

Fulminante, 499 U.S. at 308 (Rehnquist, C.J., dissenting in part).

However, as to errors such as "a judge who was not impartial," id. at

309, "[t]hese are structural defects in the constitution of the trial

mechanism, which defy analysis by ‘harmless-error’ standards. The

entire conduct of the trial from beginning to end is obviously

affected by the absence of counsel for a criminal defendant, just as

it is by the presence on the bench of a judge who is not impartial."

Id. at 309-10. As the Court noted in Vasquez v. Hillery, 474 U.S.

254 (1986):

When constitutional error calls into question the

objectivity of those charged with bringing a defendant to

judgment, a reviewing court can neither indulge a

presumption of regularity nor evaluate the resulting harm.

Accordingly, when the trial judge is discovered to have

had some basis for rendering a biased judgment, his actual

motiviations are hidden from review, and we must presume

that the process was impaired.

Id. at 265 (emphasis added).

The Court in Rose v. Clark, 478 U.S. 570 (1986), similarly

acknowledged that "some constitutional errors require reversal

without regard to the evidence in the particular case" because those

errors "necessarily render a trial fundamentally unfair." Id. at

577. As Justice Powell wrote:

The State of course must provide a trial before an

impartial judge, . . . with counsel to help the accused

defend against the State’s charge. Without these basic

protections, a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or

innocence, . . . and no criminal punishment may be

regarded as fundamentally fair.

100

Id. (citations omitted). In distinguishing structural errors from

trial-type errors, the Court in Rose explained that "if the defendant

had counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred are

subject to harmless-error analysis." Id. at 579. The Court made it

very clear, however, that a trial by a biased adjudicator remained

without a doubt an error which results in the denial of the basic

trial process "altogether." Id. at 578 n.6 (citing Tumey v. Ohio,

273 U.S. 510 (1927)). See also Rose, 478 U.S. at 592 (Blackmun,

Brennan, and Marshall, JJ., dissenting) ("effective defense counsel

and an impartial judge play central roles in the basic trial

process").

Justice O’Connor’s majority opinion in Satterwhite v. Texas,

486 U.S. 249 (1988), again reiterated the Court’s unwaivering stance

that structural errors can never be harmless:

Some constitutional violations, however, by their very

nature cast so much doubt on the fairness of the trial

process that, as a matter of law, they can never be

considered harmless. Sixth Amendment violations that

pervade the entire proceeding fall within this category.

Id. at 256. Because "the scope of a violation" such as presence of a

biased judge at a criminal trial "cannot be discerned from the

record, any inquiry into its effect on the outcome of the case would

be purely speculative." Id. It is for this reason that harmless

error analysis is especially inappropriate for judicial bias claims,

101

and Mr. Wright does not have to identify any purportedly erroneous

rulings by the circuit court. The right to an impartial judge "is

not subject to the harmless-error rule, so it doesn’t matter how

powerful the case against the defendant was or whether the judge’s

bias was manifested in rulings adverse to the defendant." Cartalino

v. Washington, 122 F.3d 8, 10-11 (7th Cir. 1997). Accord Anderson v.

Sheppard, 856 F.2d 741, 746 (6th Cir. 1988) ("Because of the

fundamental need for judicial neutrality, we hold that the harmless

error doctrine is inapplicable in cases where judicial bias and/or

hostility is found to have been exhibited at any stage of a judicial

proceeding"). See also Suarez v. Dugger, 527 So.2d 190 (Fla. 1988)

(following evidentiary hearing, Court decides that judge should have

disqualified himself, and reversed for a new evidentiary hearing);

Rogers v. State, 630 So.2d 513 (Fla. 1994) (same); Smith v. State,

708 So.2d 253 (Fla. 1998)(same).

Judge Robert Perry presided over Jody Wright’s trial in 1983

and at his post-conviction evidentiary hearing. At no time

during those proceeding did Judge Perry reveal his affiliation with

the elected Sheriff Walter Pellicer’s who office had conducted the

criminal investigation at issue in the case. In his deposition,

Walter Pellicer testified that he had been the Sheriff of Putnam

County in 1983, at the time of Mr. Wright’s trial, and in 1988, at

deputy" as "the black person’s slang for part-time deputies"

(Pellicer Depo at 16). He elaborated "[w]ent to a colored juke one

night out in West Putnam, of course my predecessor was well known, he

was raised up in Clay and Putnam County, mostly in Putnam, and every

colored person in the county knew him. * * * But that night at this

particular juke, the Sheriff had given me a pistol that he’d

confiscated out of a robbery, told me to use it. * * * I - - he

stepped upon the porch and I stepped up on the porch, and this black

fellow stepped out and he stepped to one side and he said - - they

called Sheriff Revels "Rivers", "Mr. Rivers, I see you got a pistoltoting

deputy" (Pellicer Depo. at 17-18).

102

the time of the evidentiary hearing before Judge Perry. Former

Sheriff Pellicer testified that Judge Perry had been a special deputy

sheriff in Putnam County at the time of trial (Pellicer Depo. at 19).

Former Sheriff Pellicer explained the benefit of having a special

deputy appointment, "when they got stopped for speeding they pulled

card [sic], you know, Oh, are you a deputy sheriff? Oh, yeah. Be

careful, Sheriff, go ahead — a courtesy card, still call it that"

political good thing" (Id.). He explained, "we had a record, a book

of it, logged them all in, dates they got them; and when I cancelled

one, we cancelled them on our record book" (Pellicer Depo. at 19).

Judge Perry testified in 1992, as part of the consolidated

hearing that was subsequently voided. In that testimony, Judge Perry

revealed having been placed "on the special deputy list in Duval,

Volusia, and perhaps Orange Counties" (PC-R2. 1962). Judge Perry

explained his understanding of the status associated with the

103

listing, "[t]hey were strictly a friendship thing based on my

personal acquaintance with the various sheriffs involved. And I

would assume when the sheriff was out of office that appointment was

also voided" (PC-R2. 1963). When asked whether he had such a

listing in Putnam County, Judge Perry stated, "[w]hen Mr. Pellicer

was sheriff, I may well have been" (PC-R2. 1962). Before and during

the 1997 hearing, Mr. Wright sought to obtain further testimony from

Judge Perry, but the requests were not ruled upon before Judge Perry

died before either his testimony could be perpetuated or before he

could be called to the evidentiary hearing (PC-R2. 2485).

Captain Miller worked in the Sheriff’s Office during Walter

Pellicer’s tenure as sheriff. Captain Miller explained that former

Sheriff Pellicer had provided the special deputy appointments "to

political allies" (Miller Depo. at 7).

Former Sheriff Pellicer’s testimony was unrebutted. In his

1992 testimony, Judge Perry described the special deputy cards as a

"friendship thing" and conceded he may have had one from Putnam

County while Pellicer was sheriff. This alliance between the sheriff

and the judge was undisclosed to Jody Wright. Had it been disclosed,

it would have resulted in a motion to disqualify.

On October 3, 1991, Judge Perry resigned his position as a

circuit judge in settlement of judicial inquiry which alleged

104

judicial improprieties (PC-R2. 2590-92, Exh. 44). The inquiry

concerned judicial misconduct in 1988 and 1989 involving improper ex

parte conduct and not displaying impartiality.

One of the three prosecutors at the Jody Wright’s 1988

evidentiary hearing was Robert (Mac) McLeod. Also in 1988, Robert

McLeod handled the capital trial in Randall Scott Jones. At an

evidentiary hearing in February of 2000, Robert McLeod testified that

as a result of ex parte contact with Judge Perry, he prepared the

sentencing findings that resulted in a sentence of death. He

indicated that he did the same thing in the case of Manuel Colina who

was also sentenced to death by Judge Perry. Jones v. State, Case No.

SC00-1492, Post-conviction ROA 572). Ex parte contact with the State

was standard procedure for Judge Perry.

Another prosecutor at the 1988 Wright evidentiary hearing was

John Alexander. Judge Perry’s law clerk testified in an evidentiary

hearing in 1998 that Mr. Alexander participated on ex parte basis in

the 1989 drafting of sentencing findings imposing a death sentence

upon Richard Randolph. Randolph v. State, Case No. SC93675, Postconviction

ROA 5344). In fact, the State in 1998 stipulated that a

draft judgment and sentence came from the State Attorney’s file

(Randolph, Post-conviction ROA 5313).

Judge Perry entered his order denying Jody Wright postconviction

relief in 1989. Throughout 1988 and 1989, Judge Perry had

or Judge Perry of his ex parte standard operating procedure. After

Mr. Wright filed this claim in 1993, he sought to depose Judge Perry

in order to inquire. Judge Nichols delayed ruling on the requests

until after Judge Perry was dead, thereby depriving Mr. Wright of due

process and the opportunity permitted under State v. Lewis, 656 So.2d

1248 (Fla. 1995), to discover relevant evidence of constitutional

error.

105

ex parte contact with the prosecutors representing the State in the

Judge Perry’s actions required disclosure and disqualification

from Mr. Wright’s case. Mr. Wright’s due process rights were

violated by Judge Perry’s actions and by his law enforcement

loyalties. Mr. Wright’s conviction and sentence of death should be

vacated. At a minimum, the 1989 order should be declared null and

void.

106

In State v. Riechmann, 777 So.2d 342 (Fla. 2000), this Court

recognized that when the State drafted the findings in support of a

death sentence on an ex parte basis, two legal principles were

implicated. First, Florida law required the sentencing judge to

independent weigh the aggravating and mitigating circumstances.

Section 921.141, Fla. Stat. (1985). And second, Florida law

precluded ex parte communications concerning a pending matter. Canon

3B (7) of Florida’s Code of Judicial Conduct. The Court noted in

Riechmann, that it had previously addressed the interplay of these

two legal principles in Spencer v. State, 615 So.2d 688, 691 (Fla.

1993):

It is the circuit judge who has the principal

responsibility for determining whether a death sentence

should be imposed. Capital proceedings are sensitive and

emotional proceedings in which the trial judge plays an

extremely critical role. This Court has stated that there

is nothing "more dangerous and destructive of the

impartiality of the judiciary than a one-sided

communication between a judge and a single litigant."

Rose v. State, 601 So.2d 1181, 1183 (Fla. 1992).

Spencer, 615 So.2d at 690-91.

Scott Jones initial brief filed on April 5, 2001, that Robert McLeod

revealed in February of 2000 that Judge Perry’s standard practice was

to have the State write the sentencing order on an ex parte basis.

Given that neither the State nor Judge Perry revealed this standard

practice for over sixteen years, Mr. Wright has been denied due

process. Jones v. State, 740 So.2d 520, 524 (Fla. 1999).

107

In Riechmann, the Florida Supreme Court affirmed the finding

that reversible error occurred when Judge Solomon had the State draft

the findings in support of a death sentence on a ex parte basis:

In this case, there is no evidence in the record that the

trial judge specifically determined the aggravating or

mitigating circumstances that applied or weighed the

evidence before delegating the authority to write the

order.

Riechmann, 777 So.2d at 352. Under the circumstances here, Mr.

108

Here, Judge Nichols refused to timely rule on Mr. Wright’s

motion to depose Judge Perry. Given that the State did not comply

with its ongoing duty under Brady even when a case is in the postconviction

stage. Johnson v. Butterworth, 713 So. 2d 985 (Fla.

1998); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996). The State

has a duty to learn of evidence that might be favorable to Mr. Wright

which could form the basis for relief and to disclose it. Kyles v.

Whitley, 514 U.S. 419 (1995). The failure to timely disclose has

denied Mr. Wright due process.

Moreover, Judge Nichols unreasonable delay in ruling also

deprived Mr. Wright his rights to due process.

109

The circuit court found that this Court had properly disposed

of Mr. wright’s claims regarding the aggravating circumstances in the

direct appeal and "nothing has occurred since that would change the

rulings made therein" (PC-R2. 1139). The circuit court’s ruling was

erroneous as this Court struck and an aggravating factor on direct

appeal and failed to conduct any harmless error analysis as required

by Sochor v. Florida, 504 U.S. 527 (1992). After striking an

aggravating circumstance, this Court merely stated that "the

imposition of the death penalty was correct." Wright v. State, 473

So.2d at 1280. Accordingly, Eighth Amendment error occurred and the

circuit court’s conclusion to the contrary must be reversed.

110

Based upon the record and the arguments presented herein, Mr.

Wright respectfully urges the Court to reverse the lower court’s

denial of 3.850 relief, vacate his sentence of death, and grant him a

new trial.

I HEREBY CERTIFY that this Initial Brief of Appellant complies

with the font requirements of Fl. R. App. P. 9.210(a)(2) typed in

Courier, 12 point type, not proportionately spaced, this date, May

24, 2001.

________________________

MARTIN J. MCCLAIN

9701 Shore Rd. Apt. 1-D

Brooklyn, NY 11209

OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL-SOUTH

101 N.E. 3rd Avenue

Suite 400

Fort Lauderdale, FL 33301

Copy furnished:

Judy Taylor Rush

Assistant Attorney General

Office of the Attorney General

444 Seabreeze Blvd., 5th Floor

Daytona Beach, FL 32118