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.[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 6th sleeping on his living room
couch (Douglas Depo. at 34).
Subsequently, Charles Westberry, while talking to
his estranged wife, changed his story and claimed Joel Dale Wright arrived at
his house much later and confessed the murder to him. The estranged wife told
the deputy sheriff who she was dating of this conversation. After Charles was arrested and charged
as an accessory to murder, he agreed to testify against Jody in return for
immunity (PC-R2. 2415-17). On the
basis of his testimony, Jody was convicted and sentenced to death.[2]
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).
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 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).[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.