IN THE SUPREME COURT OF FLORIDA
CASE NO. SC00-1389
JOEL DALE WRIGHT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT,
IN AND FOR PUTNAM COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
MARTIN J. MCCLAIN
Special Assistant CCRC-South
Florida Bar No. 0754773
9701 Shore Rd. Apt. 1-D
Brooklyn, NY 11209
(718) 748-2332
OFFICE OF THE CAPITAL COLLATERAL
REGIONAL COUNSEL FOR THE
SOUTHERN REGION
101 N.E. 3rd Avenue
Suite 400
Ft. Lauderdale, FL 33301
COUNSEL FOR APPELLANT
i
PRELIMINARY STATEMENT
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.
REQUEST FOR ORAL ARGUMENT
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
TABLE OF CONTENTS
Page
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
TABLE OF AUTHORITIES
Page
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
1
Interestingly, Dr. Harry Krop evaluated Jody Wright in 1988(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
INTRODUCTION
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
row for eighteen (18) years and still counting.
1Lima 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
spent the early morning hours of February 6
th sleeping on his livingroom 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-
2
Justice Blackmun in his dissent from the denial of a writ ofcertiorari said "this case comes down to Wright’s word against
Westberry’s." Wright v. Florida, 474 U.S. 1094, 1097
(1986)(Blackmun, J., dissenting).
3
The jury also did not hear certain undisclosed impeachmentevidence 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
to death.
2However, the jury never heard a wealth of evidence implicating
Henry Jackson and Clayton Strickland in the murder of Ms. Smith.
3 OnFebruary 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
4
Henry Jackson had previously been convicted of a homicide (PCR2.2615-16). 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).
5
The evidence showed that Ms. Smith was in all likelihoodstabbed by a right-handed person (R. 1739, 1816). Jody is lefthanded.
6
The stab wounds on Ms. Smith were consistent with a pocketknife - "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
though Henry might kill him, he wasn’t scared (PC-R2. 445).
4 Ms.Luce then, observed Jackson come outside into the yard brandishing a
knife in his right hand (PC-R2. 445).
5 The knife was a "pocketknife" with a blade "about three or four inches long" (PC-R2. 2626).
6Mr. 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
7
James Dunning, the prosecutor, testified in 1988 that thisdocument "should have been given" to defense counsel because it
contained information that "may [be] considered [] favorable to the
Defense"(PC-R1. 724-25).
8
The medical examiner initially placed the time of Ms. Smith’sdeath 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
home on February 7, 1983, and took her statement (PC-R2. 2570).
7After 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,
drinking (PC-R1. 1006-07, PC-R2. 2431).
89
Ms. Smith was found with a chocolate bar on her exposedabdomen.
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
of chocolates.
9 Ms. Luce asked Mr. Jackson if he had killed Ms.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.
10
Mr. Dunning testified in 1988 that he did not remember whetherhe 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.).
11
Of course, when Kim Holt was interviewed on February 28th, sheindicated the scratches were already present at 4:30 pm.
12
Wanda Brown in her February 7th statement had advised lawenforcement 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
regarding these events on February 9, 1983 (PC-R2. 445).
10Sheriff 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.
378).
11 According to Strickland, he had last seen Ms. Smith on"Tuesday or Wednesday" of the previous week (PC-R1. 379).
12According 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
13
In the intervening years, Taylor Douglas had been electedPutnam County Sheriff.
14
In 1988, Taylor Douglas testified that he recalled that thepolice 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."
In 1997, Sheriff Taylor Douglas
13 testified that he knew "Mr.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,
according to the 1988 testimony, was revealed to be nonexistent.
14these 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.
15
No hair was obtained from either Jackson nor Strickland forforensic 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
Strickland were provided to defense counsel.
15 Defense counsel hastestified 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
16
So, the hair had sufficient characteristics to be compared toMs. 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).
17
A fingerprint identified as Jody’s had been found on Ms.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
other was not." (R. 2096).
16Additionally, 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
his own defense at his trial.
17 Kathy Waters, an individual in thecourtroom 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.
18
Mr. Dunning was suspended from the practice of law shortlybefore 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).
19
On October 3, 1991, Judge Perry resigned his position as acircuit 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.
20
During the deliberations the jury asked for the testimony ofMs. 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
STATEMENT OF THE CASE
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.
2406). The assigned prosecutor was James Dunning.
18 Thereafter, Mr.Wright entered pleas of not guilty on all counts.
Trial commenced on August 22, 1983, before Judge Robert Perry
19and on September 1, 1983, the jury returned guilty verdicts on each
count (R. 688).
20On September 2, 1983, the penalty phase proceeding began.
Later that same day, the jury returned a recommendation of death.
21
One of the three prosecutors at the evidentiary hearing wasRobert (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
before Judge Robert Perry on October 3, 1988.
21hearing 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).
22
This Court quoted Judge Perry’s order virtually verbatim inits opinion affirming on appeal.
23
Judge Perry did not reveal at this time or at any time whilehe 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
and Luce" (Wright v. State, 581 So.2d 882,883 (Fla. 1991)).
22Relying 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
hearing had been conducted.
23were 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
24
The previously undisclosed records were in fact introducedinto 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,
and additional Chapter 119 records were disclosed.
24 Mr. Wright’smotion 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
25
Of course in the two and half years he sat on the case beforeissuing 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.
(PC-R2. 1138).
25 This was the totality of Judge Nichols discussionof the primary claim Mr. Wright had advanced at the evidentiary
hearing and closing argument.
20
STATEMENT OF THE FACTS
A. The Trial Record.
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).
26
Fingerprint comparisons for Henry Jackson and ClaytonStrickland were not done.
27
The enterprise was quite lucrative. Charles Westberryacknowledged that one sale in mid-march of 1983 resulted in $1200 in
proceeds (R. 2183-95).
28
The evidence at trial was that Mr. Wright had wonapproximately thirty dollars in the poker game (R. 1874).
29
Mr. Wright passed a polygraph while relating these facts.30
Denise Easter was sharing a bedroom with Charles Westberry atthe 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
been in the house on numerous occasions.
26Second, there was the testimony of Charles Westberry. Jody and
Charles had been friends who had started stealing scrap metal and
selling it for profit.
27 After Ms. Smith’s death, Jody had beeninterviewed and explained that on the night of the homicide he had
been out late playing poker.
28 When he arrived home after midnight,he was locked out. He walked across town to Charles’s house where he
spent the night.
29 Charles vouched for the accuracy Jody’s report,confirming his arrival sometime around 1:00 a.m.
30 A couple of1:00 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.
31
According to Paige, Charles reported that Jody had claimed tohave 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
accounts, not the evidence from the scene.
31 Page told herboyfriend, a deputy sheriff. Charles was arrested and charged as
accessory to murder. He was given immunity on the condition that he
testify against Jody.
32
During the winter months prior to Ms. Smith’s death, WalterPerkins 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).
33
In denying the 3.850 motion in 1989, Judge Perry addressedJody’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.
34
As it turned out, one of the individuals who came forward withthis 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
the arrest of Mr. Wright,
32 testified that Mr. Wright at one pointwas 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
chance of living."
33During the trial, the prosecutor received a tip that two
individuals
34 were in possession of a glass money jar that they hadobtained 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).
B. The 1988 Post-Conviction Record.
35
Of course as has been previously noted, Taylor Douglastestified 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
on him turned [out] to be paint as opposed to blood." (PC-R1. 721).
35afternoon (PC-R1. 378).
36
The receipts were introduced into evidence by Mr. Wright andsupported 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
it" (PC-R1. 730).
36Mr. 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.
37
Charlotte Martinez was accompanied by Cynthia Kurkendall, hersister, 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
Charlotte Martinez
37 which she provided to the prosecutor as possiblythe 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
38
Jody’s mother had died after Jody’s arrest and before histrial.
29
ownership clearly." (PC-R1. 818).
38 In fact, Mr. Pearl accompaniedMrs. 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
39
Despite intensive effort to locate these polygraph results,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
involved with the Lima Paige Smith murder.")(PC-R1. 964).
39Similarly, 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:
40
In fact, such a statement has never surfaced in all of theextensive 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
cut down the tree" (PC-R1. 1070).
40 Captain Miller stated that he,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.
C. Proceedings at the 1997 Evidentiary Hearing.
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
41
The memorandum was from Paul Usina and 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).
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
untrustworthy.
41 He had been written up in 1980 over his handling ofanother 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.
42
They were located as witnesses only after the 1991 disclosureof 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
Marjenhoff as witnesses (PC-R2. 2537, 2548).
42 They testifiedconcerning 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
43
Mr. Wells was located as a witness only after the 1991disclosure 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.
2573).
43 He testified that he had known Henry Jackson and hisbrothers 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?
44
Ms. Hill was located as a witness only after the 1991disclosure 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).
Mr. Wright called Ella Hill as a witness (PC-R2. 2629).
44 Shetestified 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.
* * *
45
The police reports that were admitted into evidence as Exhibit46 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
pantyhose [that] she was wearing was gone" (PC-R2. 185).
45The 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
46
No records were revealed of whether Bobby Hackney wasseriously interviewed as a suspect or if so how he was eliminated.
47
No records were revealed as to whether Connie Ray Israel wasconsidered 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
illegal stealing and selling scrap metal.
46Also 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
to the crime. This seems to be a reference to Connie Ray Israel.
47The 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
48
Not only had Sheriff Pellicer revealed in 1997 that in fact hehad 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
Judge Perry (PC-R2. 2485).
48 However, Judge Nichols did not grantthe 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
STANDARD OF REVIEW
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
SUMMARY OF THE ARGUMENTS
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).
49
It should be noted that this proceeding is a continuation ofthe 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
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.
A. Introduction.
Mr. Wright first alleged that he had been denied an adequate
adversarial testing when he litigated his Rule 3.850 in 1988.
49Though 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.
50
Here, the denial was never final in that this Court remandedfor 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
affirmed by this Court. After that decision denying was final,
50 Mr.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
51
The more likely than not standard was specifically rejected inKyles 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
Defendant’s trial would have been different."
51 Second, JudgeNichols 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
52
Under Jones v. State, 591 So.2d 911 (Fla. 1991), evidence ofinnocence, 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
wrong legal standard.
52In 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.
B. Previously Unavailable Evidence and False Facts.
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
53
Too often collateral litigants have used sloppy language inpleading 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.
54
The State has an ongoing duty under Brady even when a case isin 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
1988, but were not then disclosed.
53 The State thus failed in itsobligations to disclose exculpatory evidence and to disclose public
records when requested.
54 In analyzing the evidence, the circuitcourt 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.
1. False fact regarding Freddie Williams.
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.
2. False fact as to polygraph.
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.
3. Previously undisclosed exculpatory evidence.
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.
C. Guarantee to Adequate Adversarial Testing.
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).
55
In fact, the record is clear that both the prosecutor and thedefense 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).
56
In Bagley, the Supreme Court adopted the Strickland prejudicestandard 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
the jury did not hear the evidence in question.
55 In order "toensure that a miscarriage of justice [did] not occur," Bagley, 473
U.S. at 675, it was essential for the jury to hear this evidence.
56Here, 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.
1. Evidence not disclosed by the State.
The evidence notdisclosed be the State before Mr. Wright’s trial included the
following:
57
When called to the witness stand, Wanda Brown said that HenryJackson 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
was murder and his demand for money from Ms. Brown.
57b. 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.
58
When called to the witness stand, Leon Wells discussed HenryJackson’s fondness for knives (PC-R2. 2575).
59
The Supreme Court has specifically recognized that evidencethat 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").
60
This also goes to the reliability of law enforcement’scriminal investigation. Kyles.
74
f. The police report concerning Leon Wells’ call
concerning Henry Jackson’s violent behavior.
58g. 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
or adequately investigated as a suspect.
59i. 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
Palatka who lived alone.
60j. Jim Dunning’s undisclosed decision not to
prosecute Charles Westberry for his theft of scrap metal and his
61
This Court recently held that as a matter of law "evidence ofcoaching and conflicting accounts clearly was clearly [evidence]
favorable to [the defendant]." Rogers v. State, Slip op. at 24.
62
This goes to the reliability of the police investigation.Kyles v. Whitley, 514 U.S. at 446.
63
This goes to the reliability of the police investigation.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
the weeks before the trial.
61l. 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
cases.
62m. 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
arrest him on April 19th.
63n. The fact that there was no documentation of law
enforcement of ever checking out Henry Jackson’s story of how he
64
This goes to the reliability of the police investigation.Kyles v. Whitley, 514 U.S. at 446.
65
This goes to the reliability of the police investigation.Kyles v. Whitley, 514 U.S. at 446.
66
This goes to the reliability of the police investigation.Kyles v. Whitley, 514 U.S. at 446.
67
Not only does this goes to the reliability of the policeinvestigation, it provides substantial evidence that Henry Jackson
76
obtained the money observed by Kim Holt and how he obtained the
scratches she observed on his face as well.
64o. The fact that the fingerprints of Henry Jackson
and/or Clayton Strickland were never compared to the prints lifted
from the crime scene.
65p. The fact that hair was never obtained from Henry
Jackson and/or Clayton Strickland and compared to the unidentified
hair found on Ms. Smith’s body.
66Moreover 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
5:00 p.m. and 9:00 p.m. on February 5, 1983 (R. 1852).
67and Clayton Strickland committed the murder and lied to police about
the activities on the evening of February 5, 1983.
68
In the credibility battle described by Justice Blackmun in hisdissent from the denial of certiorari review, the prosecutor used the
glass jar to bolster Charles Westberry’s credibility (R. 2742).
69
Again, Kyles recognized that a defense attorney can use togood effect information that evidence may have been planted or that
the police investigation was unreliable.
77
2. Evidence not present by defense counsel.
Theavailable 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
house (PC-R2. 819-20).
68b. 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
make [her] sorry [she] ever had them two boys" (PC-R2. 2587-88).
69c. 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.
3. Confidence is undermined in outcome.
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
70
Between February 6th (the discovery of the body) and April19th (the arrest of Charles Westberry), no fingerprint comparisons
were made at all. Law enforcement was purportedly baffled and
stumped by the murder.
71
Certainly if denial of guilt alone were enough to exonerateindividuals 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.
72
See Israel v. State, Case No. SC95873.81
history, there was no fingerprint comparison or hair sample
obtained.
70 Law enforcement had no reason to think the murder wascommitted 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
accepting their denial of guilt.
71 Further, law enforcement failedgenerally to conduct a reliable investigation of any of the suspects,
including Bobby Hackney and Connie Ray Israel.
72In 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
73
It is clear that Mr. Dunning knew the truth about the decanterbecause 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
Westberry, yet Mr. Dunning knew that his argument was false.
73Additionally, 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
74
The jury was required to acquit if it had a reasonable doubtof 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
occurred. Confidence is undermined in the outcome.
74 There is much,much more than a reasonable probability of a different outcome. Mr.
Wright was convicted and sentenced without a constitutionally
adequate adversarial testing.
84
D. Evidence of Innocent Under Jones v. State.
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
75
Apparently, Clayton Hughes’ mother was one of elderly womenliving 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
batteries (Exh. 47).
75E. Cumulative Analysis Is Required.
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
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.
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
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.
A. Introduction.
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
impartial judge is one of the most, if not
the most, fundamentalright 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
will always invalidate the conviction") (citing,
inter alia, Tumey v.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).
B. Ties to Sheriff Pellicer.
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
76
Former Sheriff Pellicer also explained the phrase "pistoltotingdeputy" 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"
(Pellicer Depo. at 20).
76 "But it was a courtesy thing and apolitical 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.
C. Ex parte contact with State was standard practice.
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
77
Of course, Mr. Wright was never notified by either the Stateor 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
proceedings against Mr. Wright.
77D. Conclusion.
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
ARGUMENT IV
MR. WRIGHT’S WAS SENTENCED TO DEATH BY A JUDGE
WHOSE STANDARD PRACTICE WAS TO HAVE THE STATE
DRAFT THE FINDINGS IN SUPPORT OF A SENTENCE OF
DEATH. THIS PROCEDURE ERRONEOUS PROCEDURE
VIOLATED DUE PROCESS AND FLORIDA LAW.
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.
78
Undersigned counsel did not learn until reading the RandallScott 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.
Wright’s sentence of death must be vacated.
78108
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.
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
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.
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
CONCLUSION
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.
CERTIFICATE OF COMPLIANCE AS TO TYPE SIZE AND STYLE
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