IN THE SUPREME COURT OF FLORIDA

CASE NO. SC00-1389

JOEL DALE WRIGHT,

Appellant,

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.

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.^[1]

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 (Douglas Depo. at 34).

However, the jury never heard a wealth of evidence implicating Henry Jackson and Clayton Strickland in the murder of Ms. Smith.^[3] 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).^[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 “pocket knife” with a blade “about three or four inches long” (PC-R2. 2626).^[6] 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).^[7]

After dark on the evening of February 5, 1983 (during the period that the medical examiner gave as the range in which the murder occurred), William Bartley observed Henry Jackson and Clayton Strickland standing in the vacant lot next to Ms. Smith’s house, drinking (PC-R1. 1006-07, PC-R2. 2431).^[8]

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.^[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. 2622). Ms. Luce gave the sheriff’s office a written statement regarding these events on February 9, 1983 (PC-R2. 445).^[10]

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).^[11] According to Strickland, he had last seen Ms. Smith on “Tuesday or Wednesday” of the previous week (PC-R1. 379).^[12] 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^[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.^[14]

None of the statements regarding Henry Jackson and Clayton Strickland were provided to defense counsel.^[15] 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).^[16]

Additionally, there were “[t]hree latent palm prints and one latent impression” from the footboard of Miss Smith’s bed that were never matched to any known fingerprints (R. 2051, Exh. 47). However, comparisons with Jackson and Strickland were never made.

Jody maintained his innocence and did so when he testified in his own defense at his trial.^[17] 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.^[18] Thereafter, Mr. Wright entered pleas of not guilty on all counts.

Trial commenced on August 22, 1983, before Judge Robert Perry^[19] and on September 1, 1983, the jury returned guilty verdicts on each count (R. 688).^[20]

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.^[21]

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)).^[22] 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.^[23]

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 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.^[24] 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 (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).

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 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 discussion of the primary claim Mr. Wright had advanced at the evidentiary hearing and closing argument.

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). 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.^[26]

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.^[27] 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.^[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 of 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 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,^[32] 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.”^[33]

During the trial, the prosecutor received a tip that two individuals^[34] 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).

B. The 1988 Post-Conviction Record.

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).^[35] 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).^[36]

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 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.

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).

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).^[38] 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 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.