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 Ave.

Suite 400

Ft. Lauderdale, FL 33301

COUNSEL FOR APPELLANT

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.

CERTIFICATE OF FONT

This brief is typed in Courier 12 point not proportionately spaced.

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 seriousness of the claims and the issues raised here. Mr. Wright, through counsel, respectfully urges the Court to permit oral argument.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

Page

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.

Lima Page Smith was found stabbed to death at 4:15 pm. on February 6, 1983, in Palatka, Florida, by her brother, Earl Smith (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 living room couch (Exh. 3, 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. 2415-17). On the basis of Charles’ testimony, Jody was convicted of first degree murder and sentenced to death.

However, the jury never heard a wealth of evidence implicating Henry Jackson and Clayton Strickland in the murder of Ms. Smith. On February 4, 1983, Henry Jackson and Clayton Strickland were roommates and lived next door to Charlene Luce (PC-R2. 445, 2611). This was "about a block away" from Ms. Smith’s residence (PC-R1. 965). On February 4th, Strickland approached Ms. Luce and told her that, even though Henry might kill him, he wasn’t scared (PC-R2. 445). Ms. Luce then, observed Jackson come outside into the yard brandishing a knife in his right hand (PC-R2. 445). The knife was a "pocket knife" with a blade "about three or four inches long" (PC-R2. 2626). Mr. Jackson was angry and was demanding money from Mr. Strickland (PC-R2. 445).

On February 5, 1983, Wanda Brown, a mail carrier, observed Ms. Smith outside her residence arguing with Mr. Strickland and Mr. Jackson and motioning for them to move away with her hand (PC-R2. 447, 2558). Mr. Strickland then shook his arm at Ms. Smith (PC-R2. 447). When Mr. Strickland saw Ms. Brown in her postal jeep, he ran in front of the vehicle forcing her to stop (PC-R2. 2559). He walked up to the door of the vehicle and demanded to know if she had his 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).

After dark on the evening of February 5, 1983, 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).

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. (PC-R2. 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. 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. 2622). Ms. Luce gave the sheriff’s office a written statement regarding these events on February 9, 1983 (PC-R2. 445).

Sheriff officers interviewed Henry Jackson and Clayton Strickland on February 10, 1983. According to Jackson, the scratches on his face were from a fight Sunday night (February 6th) (PC-R1. 378). According to Strickland, he had last seen Ms. Smith on "Tuesday or Wednesday" of the previous week (PC-R1. 379). According to Jackson, "we went to bed early" on Saturday, February 5th. According to Strickland, "Henry and I had been drinking a lot on Saturday and was pretty high. We went to bed around eight o’clock I guess. I didn’t get up until Sunday morning and I made some coffee for Henry and I. Henry and I stayed at the trailer all morning" (PC-R1. 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 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 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" (Exh. 3, 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.

None of the statements regarding Henry Jackson and Clayton Strickland were provided to defense counsel. Defense counsel has testified that he would have used these various statements at trial had he been aware of them (PC-R1. 808).

As it was Jody’s jury heard none of the evidence implicating Henry Jackson and Clayton Strickland. However, a forensic examiner for FDLE testified that she found in a pubic hair combing from the victim, "one brown hair present which demonstrated some characteristics of caucasian pubic hair, but the hair was different from the hairs in the pubic hair standard from Smith." (R. 2080). The examiner compared this hair to known standards from Jody, "and the bottom line that we have here is that whatever that pubic hair was or whose ever it might have been, in the pubic hair found in the pubic hair of Miss Smith, [the examiner] could not match it with Jody Wright." (R. 2095). The examiner noted that the hair "demonstrated some characteristics of caucasian pubic hair. Wright’s pubic hair standard demonstrated characteristics of caucasian pubic hair. They were different because one was characteristic of pubic hair, the other was not." (R. 2096).

Additionally, there were "[t]hree latent palm prints and one latent impression" from the footboard of Miss Smith’s bed which 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. Kathy Waters, an individual in the courtroom listening to his testimony, realized that she had seen someone looking like Jody walking on the road to Charles Westberry’s residence at precisely the time Jody said (R. 2613-17). After the evidence was closed, she contacted defense counsel and advised him that she remembered driving some young people home after a church function at approximately 12:30 a.m. on February 6, 1983, and seeing someone who looked like Jody walking toward the trailer park where Charles Westberry resided (PC-R2. 2446). Judge Perry refused to 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. 2645, 2678).

Accordingly, Jody Wright despite his innocence of the crime was convicted of the murder of Lima Smith and sentenced to death.

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. Thereafter, Mr. Wright entered pleas of not guilty on all counts.

Trial commenced on August 22, 1983, before Judge Robert Perry and on September 1, 1983, the jury returned guilty verdicts on each count (R. 688).

On September 2, 1983, the penalty phase proceeding began. Later that same day, the jury returned a recommendation of death.

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.

On June 8, 1989, Judge Perry entered an order denying post-conviction 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)). Relying upon Taylor Douglas’ testimony that Jackson and Strickland were eliminated as suspects when they passed polygraph examinations, Judge Perry further stated: "Whether the statements were exculpatory in nature is highly speculative and thus, the claim is legally insufficient to support a claim under Brady" (581 So.2d at 883).

On June 22, 1989, Mr. Wright filed a motion for rehearing and a motion to amend regarding newly discovered evidence regarding Howard Pearl’s status as a special deputy sheriff. On August 21, 1989, Judge Perry denied relief on the "Pearl" issue on the basis of the decision by another judge in another case in which an evidentiary hearing had been conducted.

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 rendered ineffective assistance 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 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." (PC-R2. 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 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. Mr. Wright’s motion to vacate was again amended to include the new disclosures. The newly disclosed records included Judge Perry’s status as a special deputy sheriff. Former Sheriff Walter Pellicer explained 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 (Exh. 40, Pellicer Depo., at 18-20). Captain Miller explained that the cards were given "to political allies" of Sheriff Pellicer (Exh. 19, 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 (Exh. 40, Pellicer Depo., at 18).

The records disclosed in 1996-97 included materials revealing that Walter Perkins was fired by the Sheriff’s Department in January of 1986 because he was lazy and untrustworthy. He had been written up in 1980 over his handling of another case. There, a woman named Dell Gillman, who had sought help from the Sheriff’s Department regarding spousal abuse, claimed that Officer Perkins’ report regarding his response to her call for help was not truthful and "did in fact falsify the actual report." She queried that his conduct raised the question of whether he would engaged in similar behavior in other cases (Exh. 47).

Jail records revealed in 1997 included a report that Mr. Wright had attempted suicide on the eve of trial after his mother had died. (Exh. 47). Though this report indicated that Freddie Williams was contacted, Mr. Williams had no memory of the incident (PC-R2. 2536). And the matter was never brought to the attention of the trial court in 1983.

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).

Howard Pearl also testified, as did Charlene Luce, Wanda Brown and Kim Holt.

STATEMENT OF THE FACTS

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). 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.

Second, there was the testimony of Charles Westberry. Jody and Charles had been friends who had started stealing scrap metal and selling it for profit. After Ms. Smith’s death, Jody had been interviewed and explained that on the night of the homicide he had been out late playing poker. When he arrived home after midnight, he was locked out. He walked across town to Charles’s house where he spent the night. Charles vouched for the accuracy Jody’s report, confirming his arrival sometime around 1:00 a.m. A couple of months later, Charles had a conversation with his estranged wife, Page, 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 Page 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. Page told her boyfriend, a deputy sheriff. Charles was arrested and charged as accessory to murder. He was given immunity on the condition that he testify against Jody.

Third, a police officer, Walter Perkins, who was involved in the arrest of Mr. Wright, testified that Mr. Wright at one point was alone with Officer Perkins and said to him: "If I confess to this, I’ll die in the electric chair, if I don’t talk I stand a chance of living."

During the trial, the prosecutor received a tip that two individuals were in possession of a glass money jar that they had obtained from Jody after Ms. Smith’s death and which they believed was the glass money jar described by Charles as taken from Ms. Smith’s home (PC-R1. 771-73). Mr. Pearl had a witness available to identify the glass jar as a decanter that was a Wright family heirloom, and the witness possessed the matching glasses to prove it (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).

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). 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).

Mr. Dunning also acknowledged that Charles Westberry received "a limited grant of immunity" for the illegal scrap metal business (PC-R1. 756). Westberry testified that he was "scared of getting into trouble for [scrap metal business]" (PC-R1. 645). He was also "worried that if [he] got in trouble Paige would get in trouble" (PC-R1. 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 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.

Mr. Pearl also testified that he had 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 which she provided to the prosecutor as possibly the jar Charles Westberry claimed Mr. Wright stole from Ms. Smith (PC-R1. 816). Charlene Martinez indicated that one night when Jody needed money he ran into his house and brought out the decanter filled with change.

Once, this decanter surfaced Mr. Pearl learned that it in fact was a Wright family heirloom. He "brought down from South Carolina a Mrs. Wiggs . . . who was Jody’s [aunt], who identified that glass jar as one having been bought by her together with a group of matching glasses and given to Jody’s mother, which would have established ownership clearly." (PC-R1. 818). In fact, Mr. Pearl accompanied Mrs. Wiggs to the Wright residence and observed the matching glasses in the cupboard where Jody’s mother had kept them (PC-R1. 818). Based upon this, the prosecutor elected not to present Charlotte Martinez to testify about the decanter she had provided the prosecution. Mr. Pearl then decided to call her to present the fact that Jody had access to money in his own house if he needed it and that he acquired no unexplained infusion of cash (PC-R1. 819). However after presenting Ms. Martinez’s testimony, Mr. Pearl failed to call Mr. Wright’s aunt to identify the glass decanter and the matching glasses. Regarding this failure Mr. Pearl testified:

I failed to prove, and I had the proof in my hand, that 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 ladse in closing arguments to argue to the jury that 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).

Similarly, Captain Cliff Miller was called at the 1988 evidentiary hearing. During his testimony the following exchange occurred:

Q Did you come up with any proof that Mr. Strickland and/or Mr. Jackson did not kill Miss Smith?

A Their interviews, what other interviews we did, coupled with the polygraph exam.

(PC-R1. 1071). Captain Miller claimed to recall that there was an interview of someone from whom "Jackson said he got money [for] cutting down a tree" (PC-R1. 1071). Captain Miller also believed that he had found someone who said "Mr. Jackson was retained to cut down a tree, and the scratches he received as a result of the tree" (PC-R1. 1067). When confronted with Jackson’s own statement indicating that scratches came from a fight the night of Sunday, February 6th, Captain Miller retorted:

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). 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.

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).

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 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 so-called 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.

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 Howard Pearl’s status as a special deputy. The case was "remanded for an evidentiary hearing." 581 So.2d at 887.

In preparation for that evidentiary hearing, Mr. Wright again made Chapter 119 requests. Mr. Wright’s investigator was handed a packet of material by Captain Cliff Miller who said these are the documents that Mr. Wright did not receive in 1988. Based upon those documents, Mr. Wright filed an amended motion to vacate. These newly disclosed documents provided additional Williams Rule evidence against Henry Jackson and Clayton Strickland, as well as a claim challenging whether full Chapter 119 compliance had yet occurred. In addition, Mr. Wright pled as a claim that Judge Perry’s finding that Freddie Williams saw the Jackson and Strickland documents in the State Attorney’s Office prior to the trial was factually wrong. Freddie Williams saw those documents in the State Attorney’s Office five years after the trial.

Pursuant to this Court’s direction, Mr. Wright’s case was consolidated with several other cases before Judge Driver for hearing regarding Howard Pearl’s status as a special deputy and how it affected his representation of his clients. This evidentiary hearing was conducted in December of 1992. However, Judge Driver severed Mr. Wright’s claims in his amended 3.850, and indicated that they would be heard at a later date. He refused to allow Mr. Wright to present any evidence regarding his Brady allegations and ineffective assistance allegations. Judge Driver would only permit evidence of Mr. Pearl’s status as a special deputy.

The State’s case against Mr. Roberts was based upon testimony of Ms. Haines and Ms. Rimondi. Without Ms. Haines’ testimony, the State’s case would depend upon Ms. Rimondi’s thoroughly impeached testimony. Even with Ms. Haines’ testimony, Mr. Roberts’ jury deliberated for three days before finally convicting Mr. Roberts. A review of the State’s closing argument reveals the significance the State gave to Ms. Haines’ testimony. The State devoted a large portion of its argument to discussing the importance of Ms. Haines’ testimony and why the jury should believe her testimony. (R. 2940-96).

As the United States Court of Appeals for the Eleventh Circuit noted in Mr. Roberts’ case, Ms. Rimondi underwent an effective "tenacious cross-examination" -- so effective that the court found that "further impeachment of Rimondi with any inconsistent statements would not have changed the outcome of the trial." Roberts v. Singletary, 29 F.3d 1474, 1478-79 (11th Cir. 1994). In doing so, the Court relied upon Mr. "Roberts’ girlfriend [who] testified that Roberts told her he killed a man." Id. Even in light of eyewitness Rimondi’s testimony, without Ms. Haines’ testimony that Mr. Roberts confessed and was in possession of the alleged weapons, confidence is undermined in the outcome.

Thus, the analysis violates Kyles v. Whitley, 115 S. Ct 1555 (1995); Lightbourne v. State, 742 So.2d 238, 247 (Fla. 1999).

it sets forth clear and convincing evidence of State misconduct involving the wrongful withholding of exculpatory evidence, Brady v. Maryland, 373 U.S. 83, 87 (1963), and the presentation of knowingly false testimony. Giglio v. United States, 405 U.S. 150, 154 (1972).

The State promised Rhonda Haines consideration for her testimony, and the record now establishes that she received the consideration. The nondisclosure of this evidence violated the Eighth and Fourteenth Amendments of the United States Constitution and Rule 3.220 of the Florida Rules of Criminal Procedure. Gorham v. State, 597 So. 2d 782 (Fla. 1992); Roman v. State, 528 So. 2d 1169 (Fla. 1988).

In analyzing the prejudicial impact of Ms. Haines’ false testimony, consideration must be given to the Brady and ineffective assistance of counsel claims previously pled in this Court in 1989. Since Mr. Roberts was denied relief on the basis that the previously pled nondisclosures and deficient performance did not undermine confidence in the outcome because Rhonda Haines had testified that Mr. Roberts confessed to her, those matters must be revisited. The State hid exculpatory evidence. Mr. Roberts must be put in the position he would have been in had the evidence been disclosed. To do otherwise would reward the State for suppressing exculpatory evidence.

The United States Supreme Court recently recognized that, though a Brady violation may be comprised of individual instances of nondisclosure, proper constitutional analysis requires consideration of the cumulative effect of the individual nondisclosures. Kyles v. Whitley, 514 U.S. 419 (1995). The reason for this as explained by the United States Supreme Court is 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. Thus, 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.

In Kyles v. Whitley, the Supreme Court explained the appropriate standard of review of a Brady claim:

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 436.

The result reached by the Fifth Circuit majority is compatible with a series of independent materiality evaluations, rather that the cumulative evaluation required by Bagley, as the ensuing discussions will show.

Kyles, 514 U.S. at 441.

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-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 calibres, 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).

Moreover, this Court in Jones v. State, 709 So. 2d 512 (Fla. 1998), and reaffirmed in Lightbourne, made it clear that the cumulative analysis discussed in Gunsby is in fact the legally required analysis where a Brady claim, an ineffective assistance claim, and/or a newly discovered evidence claim are presented in a 3.850 motion. In 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 newly discovered 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 the trial judge’s order denying Gunsby’s motion to vacate his conviction.

State v. Gunsby, 670 So. 2d 920, 923-24 (Fla. 1996)(emphasis added). See Young v. State, 739 So. 2d 553 (Fla. 1999). This means Mr. Roberts’ claims requires cumulative consideration of all previously pleaded claims that Mr. Roberts 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.

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 was true even though this Court noted that Mr. Lightbourne had first presented a Brady claim years before. See Lightbourne v. Dugger, 549 So. 2d 1364, 1367 (Fla. 1989). In fact in Lightbourne, the Brady claim presented in 1989 was "based on the State’s failure to disclose that police had engaged in a scheme with Chavers and Carson to elicit incriminating statements from Lightbourne." 742 So. 2d at 242. The Brady claim presented in 1994 was supported by evidence not previously available ("the State committed a Brady violation in withholding evidence that Chavers’ and Carson’s testimony was false and elicited in violation of Henry". 742 So. 2d at 247.

Mr. Roberts previously presented a Brady claim, an ineffective assistance claim, and a newly discovered evidence of innocence claim. He has now located witnesses and evidence not previously available to him which proves his claims which without the new evidence was previously rejected. This is nearly identical to the situation in Lightbourne. In Lightbourne, this Court reversed a circuit court decision that failed to conduct the required cumulative consideration ("This cumulative analysis must be conducted so that the trial court has a ‘total picture’ of the case."). The order drafted by the State and signed by Judge Solomon denying 3.850 relief failed to conduct the requisite cumulative analysis and must be reversed.

CONCLUSION

Based upon the record and the arguments presented herein, Mr. Roberts respectfully urges the Court to reverse the lower court’s denial of 3.850 relief.

I HEREBY CERTIFY that a true copy of the foregoing brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on February ___, 2001.

________________________

MARTIN J. MCCLAIN

Florida Bar No. 0754773

Special Assistant CCRC-South

9701 Shore Rd. Apt. 1-D

Brooklyn, NY 11209

OFFICE OF THE CAPITAL