COMES NOW the defendant, JUAN ROBERTO MELENDEZ, by and through undersigned counsel, pursuant to this Court's Order, and hereby files closing argument in support of granting him post-conviction relief. The instant argument follows an evidentiary hearing conducted before this Court on May 29 - 30, 2001. In support of Mr. Melendez’ claims, he states as follows:

The evidentiary hearing transcript will be referred to as "EH Tr. ___", with appropriate page number(s) inserted, enclosed by parentheses. Any evidence introduced during hearing will be referred to by the exhibit number used by the Court in admitting the evidence. References to the original record on appeal from Mr. Melendez’ trial will be referred to as "R. ___", with appropriate page number(s) inserted, enclosed by parentheses. References to Mr. Melendez’ first post-conviction proceedings will be referred to as "PC-R. ___" with the appropriate page number(s) inserted, enclosed by parentheses. References to Mr. Melendez’ second post-conviction proceedings will be referred to as "PC-R2. ___" with the appropriate page number(s) inserted, enclosed by parenthesis.

INTRODUCTION.

At the heart of Mr. Melendez’ motion to vacate is his claim of innocence. It is the position of Juan Melendez and his attorneys that he did not commit the murder of Del Baker, nor did he participate in the murder in any way. The State’s case against Mr. Melendez rested primarily on the testimony of two individuals: John Berrien and David Luna Falcon. However, the testimony of John Berrien was equally available against George Berrien, who was never charged nor prosecuted for the murder. The difference between being convicted and sentenced to death for the murder of Del Baker (Juan Melendez) and remaining a free man for the past seventeen years (George Berrien), was the testimony of David Luna Falcon (EH Tr. 302).

To support his claim of innocence, Mr. Melendez’ attorneys have uncovered a wealth of evidence indicating that Vernon James, probably in the company of two other unknown men, committed the murder of Del Baker. The evidence that Vernon James participated in the murder in any degree (from merely being present to inflicting the fatal blows) is more than merely evidence against Vernon James. It is evidence that is inconsistent with the testimony of David Luna Falcon and John Berrien. The evidence that Vernon James was there constitutes impeachment of the testimony of the two witnesses on whom the conviction rests (EH Tr. 280). Even the trial prosecutor, recognized this relationship between the evidence linking Vernon James to the murder and the testimony of David Luna Falcon and John Berrien (EH Tr. 92).

Mr. Melendez asserts, not only his innocence, but his entitlement to a new trial on the basis of this evidence implicating Vernon James which his jury did not hear. The fact that one can establish innocence and yet be denied a new trial is a fact not lost on undersigned counsel. Undersigned counsel does contest whether due process can truly permit an innocent man to be denied a new trial. However, undersigned counsel does not believe that this case is one that requires that question to be addressed because under Florida law Mr. Melendez is entitled to a new trial on the basis of the claims presented in his motion to vacate. These claims include: 1) his argument that the State violated due process by not disclosing at trial and in the post-conviction process evidence that was favorable to Mr. Melendez, either because it was exculpatory or because it impeached the State’s case and witnesses (Lightbourne v. State, 742 So.2d 238 (Fla. 1999)); 2) his argument that trial counsel rendered constitutionally deficient performance at his trial (Provenzano v. State, 616 So.2d 428, 430-31 (Fla. 1993)); and 3) his contention of newly discovered evidence of innocence under Jones v. State, 591 So.2d 911 (Fla. 1991). On the merits, these claims must be evaluated cumulatively. State v. Gunsby, 670 So.2d 920 (Fla. 1996). When the proper analysis is conducted, it is clear that Mr. Melendez must be afforded a trial that is a true adversarial testing within the meaning of the constitutional guarantee.

However because this is Mr. Melendez’ third motion to vacate to vacate, his current counsel must establish that the State-provided collateral counsel in the previous proceedings exercised due diligence before the merits are required to be considered. Jones v. State, 709 So.2d 512, 522 (Fla. 1998). When due diligence is shown, the presiding judge "must evaluate all the admissible newly discovered evidence at [the most recent] hearing in conjunction with newly discovered evidence at the prior evidentiary hearing and then compare it with the evidence that was introduced at trial." For that reason, undersigned counsel will first address the question of prior collateral counsel’s diligence. He will then to turn to the merits of his claims.

DUE DILIGENCE.

Due diligence is a legal requirement for filing claims premised upon evidence not previously available. Due diligence is not explicitly defined in Florida 3.850 case law. However, in State v. Gunsby, this Court found that a trial attorney who did not exercise due diligence at trial rendered deficient performance under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). This certainly suggests that due diligence is established where an attorney’s performance was reasonable under the Strickland standard.

Under Gunsby, due diligence was not a more stringent standard than that set forth in Strickland v. Washington. A lawyer who was not diligent was found to have rendered deficient performance. The Court did not leave open the possibility that counsel could have failed to be diligent, but still have rendered effective representation. Thus, the case law discussing Strickland immediately becomes relevant. Diligence can mean no more than is required by Strickland. Thus, the wealth of cases explaining and defining the Strickland standard provide guidance as to what at a minimum constitutes diligence. The Strickland standard makes it clear that the analysis is not to be conducted with 20-20 hindsight, but instead from the point of view of counsel at the time he is conducting his investigation. Under Strickland, there is a strong presumption that counsel’s performance was reasonable. Chandler v. United States, 218 F.3d 1305, 1314 (11^th Cir. 2000)(in banc). The standard for due diligence should be no higher nor any less deferential to counsel.

Under 3.850(b), a motion for post-conviction relief can be filed more than two years after the case becomes final if "the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1)(1998) (emphasis added). The term "movant’s attorney" is clearly referring to collateral counsel only as a 3.850 motion is only used for collateral relief.

Black’s Law Dictionary, which is a legitimate source for this Court to employ, see, e.g., Gardner v. Johnson, 451 So. 2d 477, 478 (Fla.1984), defines "due diligence" as "[s]uch a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances." Black's Law Dictionary, at 411 (emphasis added). The Eleventh Circuit has indicated that "reasonableness" is the "touchstone of a lawyer’s performance." Chandler, 218 F.3d at 1319. Thus this Court, in assessing the due diligence of collateral counsel needs to consider the particular situation in which collateral counsel found themselves during the course of the investigation and whether collateral counsel, without the distorting effect of hindsight, performed their duties reasonably.

Further guidance of the meaning of the phrase "due diligence" can be obtained from the Florida Supreme Court’s analysis in Lightbourne v. State. There, the Court was faced with a procedural history substantially similar to the proceedings in Mr. Melendez’ case. Like Mr. Melendez, Mr. Lightbourne’s first Rule 3.850 motion was summarily denied without an evidentiary hearing. In the late 1980s, Mr. Lightbourne filed a second Rule 3.850 motion, which "focused primarily on attacking the reliability" of witnesses who testified against Mr. Lightbourne. An evidentiary hearing was ordered by the Florida Supreme Court. Lightbourne v. Dugger, 549 So.2d 1364 (Fla. 1989). After the evidentiary hearing was held, relief was denied by the circuit court and that result was affirmed on appeal. Lightbourne v. State, 644 So.2d 54 (Fla. 1994). Later in 1994, Mr. Lightbourne filed a third motion for post-conviction relief. The circuit court held an evidentiary hearing on this motion and denied relief. However, the circuit court refused to hear the testimony of a witness that it found procedurally barred because of a want of due diligence. The Florida Supreme Court reversed and ordered a new evidentiary hearing "as to Emanuel’s testimony and for the trial court to consider the cumulative effect of the post-trial evidence in evaluating the reliability and veracity Chavers’ and Carson’s trial testimony in determining whether a new penalty phase hearing is required, either under Lightbourne’s Brady or newly discovered evidence claims." 742 So.2d at 249.

In Lightbourne, the Florida Supreme Court found that the testimony of prior collateral counsel "that they and their staff had been diligently searching for Emanuel since 1989, with no success" required merits consideration of Emanuel’s testimony. 742 So.2d at 246. The Court concluded:

742 So.2d at 246.

Here, Mr. Melendez established his due diligence at a 1996 evidentiary hearing so that his newly discovered evidence claim was considered and denied on the merits at that point in time. When the Florida Supreme Court affirmed the denial of the merits, the Court did not entertain any claim that Mr. Melendez had not been diligent in locating the new evidence. The denial of the merits was affirmed in light of circuit court’s credibility determinations. Melendez v. State, 718 So.2d 746, 748 (Fla. 1998). Thus, the circumstances are the same as in Lightbourne.

Moreover, Mr. Melendez presented to this court, at the May evidentiary hearing, testimony regarding CCR’s ongoing diligence after the 1996 evidentiary hearing. Following the 1996 hearing, the Florida Supreme Court affirmed. Collateral counsel was obligated to prepare and file a federal habeas petition. In anticipation of proceedings on that petition in the summer of 2000, new evidence surfaced. In August of 2000, Rosa Greenbaum, an investigator with the Capital Collateral Counsel for the Northern Region (the successor office to CCR), contacted Cody Smith, Mr. Melendez’ trial investigator, to determine if he had maintained his original trial investigator file (EH Tr. 115, 396-97). This was in case it was necessary to introduce original documentation. Mr. Smith thought his original notes were possibly in his storage facility in Lakeland, Florida (EH Tr. 398). Mr. Smith agreed to travel to Florida to determine if he had any notes (EH Tr. 115). Coincidentally, Mr. Smith made lunch plans with his friend and former colleague, Roger Alcott, Mr. Melendez’ trial attorney (EH Tr. 116). During their lunch meeting, Judge Alcott realized that when he recently cleaned out his office and assumed his position on the bench he found some boxes with "Melendez" written on them (EH Tr. 309). Judge Alcott turned over those parts of his file, which included the transcript of the taped statement with Vernon James (EH Tr. 278-279). Cody Smith had completely forgotten that such a transcript existed (EH Tr. 132).

Despite prior requests for records regarding his case, Mr. Melendez did not possess Roger Alcott’s taped statement of Vernon James prior to the fall of 2000 (EH Tr. 216; Depo. of Leslie Delk at 6-7). Judge Alcott didn’t realize that he had not turned the transcript over before (EH Tr. 309). Gail Anderson, Mr. Melendez’ prior collateral counsel at the 1996 evidentiary hearing testified that she had no doubt that the transcript was not included in Mr. Melendez’ files because "these are words directly from Vernon James, not through another person, and it simply is not something you would forget." (EH Tr. 261). Thus, the transcript of the taped statement qualifies as newly discovered evidence. In Provenzano v. State, 616 So.2d at 430-31, the Florida Supreme Court found that even though an ineffective assistance of trial counsel claim had previously been presented and denied, it could be presented again where the document providing the basis for the specific allegation had not been turned over in Chapter 119 materials, and in fact had been withheld. The Supreme Court specifically indicated that Provenzano should be put "in the same position he would have been in if the files had been disclosed when first requested."

Further, the trial prosecutor has now testified that he possessed the transcript of the taped statement conducted with Vernon James (EH Tr. 87). He stated, "I cannot sit here and say I have an independent recollection of giving any particular document to anybody from CCR" (EH Tr. 88). Even though the tape was very relevant to Mr. Melendez’ prior Rule 3.850 proceedings in connection with Dwight Wells’ testimony in those proceedings, it didn’t occur to Mr. Pickard to disclose the existence of the transcript which established that Vernon James told Roger Alcott that he had already informed Dwight Wells of his presence at Mr. Baker’s when the homicide occurred. Mr. Pickard’s testimony in this regard was specifically, "I didn’t think about it to tell you the truth" (EH Tr. 90).

The Florida Supreme Court has held that: "[T]he State is under a continuing obligation to disclose any exculpatory evidence." Johnson v. Butterworth, 713 So.2d 985, 987 (Fla. 1998)(emphasis added); see also Roberts v. Butterworth, 668 So.2d 580 (Fla. 1996)(finding that Brady obligation continues in post-conviction). Again under Provenzano, Mr. Melendez should be put in the position he would have been in had the transcript been disclosed in a timely fashion either by trial counsel or by the prosecutor. In Ventura v. State, 673 So. 2d 479 (Fla. 1996), the Florida Supreme Court found that the State’s failure to disclose requested Chapter 119 materials precluded that application of a procedural bar: "The State cannot fail to furnish relevant information and then argue that the claim need not be heard on its merits because of an asserted procedural default that was caused by the State's failure to act."

It is worth pausing to address the two-fold significance of the transcript: 1) it provides the basis for an ineffective assistance of counsel claim; and 2) it corroborates the evidence presented to the lower court in 1996. As Ms. Anderson, Mr. Melendez’ 1996 collateral counsel explained:

(EH Tr. 259 - 260). As to the ineffective assistance of counsel claim, as Ms. Anderson explained: "I would rather have an ineffective assistance of counsel claim. . . . Because the prejudice standard differs and the burden of proof, basically, on the person presenting the claim is higher for a newly discovered evidence claim." (EH Tr. 260).

Besides the transcribed statement of Vernon James, Mr. Melendez was only recently able to locate and interview several witnesses who possessed relevant, exculpatory information. As was explained in 1996, the production of the public records concerning the Vernon James homicide provided leads for Mr. Melendez in the mid-1990s which did not exist before. The file contained names of several of Vernon James' friends. A number of those individuals testified in 1996 and were considered on the merits because counsel established diligence at the 1996 evidentiary hearing for obtaining access to the file regarding the murder of Vernon James. For example, Deborah Ciotti's, now Deborah Thomas, name was ascertained from the file. Ms. Thomas testified that she saw Mr. James shortly before the homicide. He told her that he was going to rob Mr. Baker and he asked her to accompany him (PC-R2. 92; EH Tr. 389-391). Ms. Thomas declined, but she witnessed Mr. James pick-up two African-American males and she witnessed Mr. James enter Mr. Baker's beauty salon (PC-R2. 92-93; EH Tr. 389-391). The Vernon James’ homicide file also led Mr. Melendez to Janice Dawson and Sandra James. Mr. James confessed to both of these individuals (PC-R2. 115-116; 127). In fact, he gave Ms. Dawson some of the jewelry he obtained during the robbery - homicide (PC-R2. 115-116).

Martin Lake was an individual whose name was contained in the Vernon James homicide files -- Mr. Lake was convicted of killing Mr. James. After several failed attempts to locate Martin Lake in the mid-1990s, Mr. Melendez’ collateral counsel was finally able to locate him in December, 2000 (EH Tr. 399). Rosa Greenbaum, Mr. Melendez’ investigator, testified that after determining that Mr. Lake was under supervision in Polk County she was able to ascertain an address. When she went to the address she learned that Mr. Lake no longer resided at that residence, but she left a business card in case he returned (EH Tr. 399). A week or so later Mr. Lake called Ms. Greenbaum at her office and they discussed his knowledge of Vernon James’ involvement in the Baker homicide (EH Tr. 400). Thereafter, Ms. Greenbaum met with Mr. Lake in person and obtained an affidavit from him (EH Tr. 403; Ex. 45). Mr. Lake provided Ms. Greenbaum with several other leads in the Melendez investigation:

(EH Tr. 403-404).

Theodore Spencer was a name that appeared in Mr. Lake's file regarding the Vernon James murder investigation (EH Tr. 404). When Ms. Greenbaum located and interviewed Mr. Spencer she learned that he did in fact have information pertaining to Mr. James’ involvement in the Baker homicide -- Mr. James’ confessed to Mr. Spencer that Mr. James had "take[n] [Mr. Del] down with some sharp blows." (EH Tr. 204). However, even more importantly, Mr. Spencer informed Ms. Greenbaum that there were other individuals who had information about the Baker homicide (EH Tr. 205). One of those individuals was Stanley Brookshire (EH Tr. 205-206).

Mr. Brookshire's name had not previously been known to Mr. Melendez’ legal team (EH Tr. 225; 269). Mr. Brookshire saw Mr. James the night of the murder at the Scottish Inn Motel (EH Tr. 171-172). Mr. James was taken to the hotel by Henry Davis and Janet Conaway in order to hide (EH Tr. 188-189). That same night, Mr. James also confessed to Mr. Brookshire (EH Tr. 173-174). Later, Mr. James traded Mr. Brookshire a couple of the rings he stole from Mr. Baker during the robbery - homicide for drugs (EH Tr. 173-174).

Mr. Lake not only provided Ms. Greenbaum his personal file regarding the Vernon James death investigation, he also told Ms. Greenbaum that Mr. James had confessed to him, as well (Ex. 45). Furthermore, Mr. Lake provided Ms. Greenbaum with Kenneth Graham's name (EH Tr. 408). Kenneth Graham, like Mr. Lake, met Mr. James after the Baker homicide. Mr. James confessed to Mr. Graham and told him about the jewelry and money he had taken from Mr. Baker during the murder (EH Tr. 366-368). Mr. Lake told Ms. Greenbaum, and Mr. Graham confirmed that Mr. Lake and Mr. Graham met while they were incarcerated together in the late 1980s (EH Tr. 369). After they became friends they discussed Vernon James and realized that he confessed his involvement in the Baker homicide to both of them (EH Tr. 369).

Martin Lake could not have been located and interviewed earlier in the post-conviction process. Attempts were made to find him once Mr. Melendez’ attorneys knew his name and his affiliation with Mr. James (EH Tr. 217; 256). Mr. Lake attested that he was out of state in the mid-1990s and he was hiding because of outstanding arrest warrants (Ex. 45; EH Tr. 410). Mr. Lake led Mr. Melendez to Theodore Spencer, Stanley Brookshire and Kenneth Graham. All of the information these individuals provided qualifies as newly discovered evidence.

Alphonso Anderson also provides newly discovered evidence. His name appeared in a 1975 incident report concerning Vernon James. Rosa Greenbaum was able to locate Mr. Anderson in 2000 and contact him even though she had no basis for believing that Mr. Anderson possessed any relevant information (EH Tr. 430). However, Mr. Anderson did possess relevant information. Vernon James had asked Mr. Anderson to help him rob Del Baker (EH Tr. 151). Shortly after Mr. Anderson refused, Mr. Baker was murdered. Thereafter, Mr. James confessed that he had killed Mr. Baker and that he faced life in prison unless he put the blame on someone else (EH Tr. 152).

Janet Conaway and Angelia Haughbrook also provide newly discovered evidence that could not have been presented earlier. Janet Gauntlett, now Janet Conaway, was a witness for whom former collateral counsel for Mr. Melendez searched, but was unable to locate (EH Tr. 263). However, in the year 2000, Janet Conaway's daughter applied for a drivers license with the Florida Department of Motor Vehicles (Eh Tr. 411). This was the triggering event which caused Amanda Gauntlett to be placed in the investigative databases in the State of Florida (EH Tr. 411). When Ms. Greenbaum searched for Janet Gauntlett in the fall of 2000, she found an individual named Amanda Gauntlett who had a relative named Janet Conaway (EH Tr. 412) . Ms. Greenbaum searched for Ms. Conaway and learned that Ms. Conaway was formerly known as Ms. Gauntlett. Ms. Conaway provided compelling testimony as she was one of the first individuals who saw Vernon James after Mr. Baker was murdered and to whom Mr. James confessed. See EH Tr. 185-200. Ms. Conaway vividly recalled seeing Mr. James covered in blood after Mr. Baker had been murder (EH Tr. 187). She recounted being ordered by the man she worked for to burn Mr. James’ clothes (EH Tr. 187). She described the threats made against her to insure her silence (EH Tr. 192). She told of her one effort to tell a police officer whose response was to call her a "unhuman being" (EH Tr. 193). And she explained the fear that those events inspired and her resulting efforts to disappear (EH Tr. 193). Despite diligent efforts she could not have been located sooner.

Similarly, Angelia Haughbrook could not have been located sooner. Cody Smith in his notes from trial was searching for Mr. James’ girlfriend, Denise Allbrook (EH Tr. 413). Mr. Smith and previous collateral investigators were unaware that Vernon James’ girlfriend's name was: Angelia Denise Haughbrook. At the time of Mr. Baker's murder, Ms. Haughbrook went by her middle name (EH Tr. 355). Ms. Greenbaum fortuitously determined that Denise Allbrook was in fact Angelia Haughbrook by searching for another witness in the case (EH Tr. 413-414). Ms. Haughbrook remembers when Mr. Baker was murdered and that Mr. James showed up with some diamond rings shortly after the homicide (EH Tr. 354). When she questioned Mr. James about the rings he told her that "he got it from a punk that he killed named Mr. Del." (EH Tr. 354). Collateral counsel had attempted to locate a woman named Denise Allbrook previously (EH Tr. 217; 263).

Despite diligent efforts on behalf of Mr. Melendez to locate witnesses who were aware of Vernon James’ participation in the murder of Del Baker, the witnesses presented in May, 2001, for the first time were not be previously located. Mr. Melendez was diligent in discovering the evidence presented at the May, 2001, evidentiary hearing. As explained in Lightbourne, where due diligence is demonstrated, "the trial court [is] to consider the cumulative effect of the post-trial evidence." 742 So.2d at 249. As explained in Provenzano, the movant should be put in the position he would have been in had the previously undisclosed documentary evidence been timely disclosed. 616 So. 2d at 430. As explained in Gunsby, the cumulative effect of Brady violations, deficient performance of trial counsel, and newly discovered evidence of innocence under Jones v. State, may undermine confidence in the reliability of the outcome of the movant’s trial and warrant a new trial. 670 So.2d at 924. Therefore, this Court must considered Brady evidence, ineffectiveness evidence, and Jones evidence, cumulatively, as is required in an initial 3.850, and determine whether confidence is undermined in the outcome. Mr. Melendez will address each of these three types of evidence in turn, and then address the cumulative analysis.

BRADY EVIDENCE.

In order to insure that a constitutionally adversarial testing, and hence a fair trial, occur, certain obligations are imposed upon the prosecuting attorney. The prosecutor is required to disclose to the defense evidence "that is both favorable to the accused and ‘material either to guilt or punishment’". United States v. Bagley, 473 U.S. 667, 674 (1985), quoting Brady v. Maryland, 373 U.S. 83, 87 (1963). In Strickler v. Greene, the Supreme Court reiterated the "special role played by the American prosecutor" as one "whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done." 527 U.S. 263, 281 (1999), quoting Berger v. United States, 295 U.S. 78, 88 (1935). See Hoffman v. State, — So.2d — (Fla. July 5, 2001), 2001 WL 747399 (Fla.); State v. Hugins, — So.2d — (Fla. June 7, 2001), 2001 WL 618063; Florida Bar v. Cox, — So.2d — (Fla. May 17, 2001), 2001 WL 521314 (Fla.). The State’s duty to disclose exculpatory evidence is applicable even though there has been no request by the defendant. Strickler at 280. The State also has a duty to learn of any favorable evidence known to individuals acting on the government's behalf. Id. at 281. Exculpatory and material evidence is evidence of a favorable character for the defense which creates a reasonable probability that the outcome of the guilt and/or capital sentencing trial would have been different. Garcia v. State, 622 So. 2d at 1330-31. This standard is met and reversal is required once the reviewing court concludes that there exists a "reasonable probability that had the [unpresented] evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 680. However where as is alleged here, the prosecutor knowingly misleads the jury, the court, or defense counsel, the conviction must be set aside unless the error is harmless beyond a reasonable doubt. Gray v. Netherland, 116 S.Ct. 2074, 2082 (1996); Kyles v. Whitley, 115 S.Ct. 1555, 1565 n.7 (1995).

At the outset, it should be noted that as to the Brady claim the State’s position at the evidentiary hearing was that:

(EH Tr. 76). Subsequently, the State again urged that the Brady materials had already been the subject of 3.850 proceedings:

(EH Tr. 212). However, the previously decided matter must be re-addressed in light of the newly disclosed and discovered evidence as explained in Lightbourne.

Assistant State Attorney Pickard failed to disclose to trial counsel a statement made by Vernon James to State Attorney Investigator Arthur Meeks that was consistent with trial counsel’s opening statement and corroborated the defense’s theory of the case. On September 4, 1984, less than two weeks before Mr. Melendez’ trial, Assistant State Attorney Hardy Pickard instructed:

(Ex. 36). Three days later, Assistant State Attorney Pickard documented the results of that interview:

(Ex. 37). This information was not disclosed to trial counsel who was never made aware of Mr. James’ statement to Arthur Meeks (EH Tr. 288). In fact, trial counsel was intentionally misled by the State in regards to Mr. Meeks's interview with Mr. James in violation of Gray v. Netherland.

After State Attorney Investigator Meeks spoke to Mr. James, the State filed an Amended Response to Discovery listing Mr. Meeks and Vincent Hudson as rebuttal witnesses to Mr. James. Trial counsel's notes and recollection reflect that the State informed him that Mr. Meeks and Mr. Hudson could testify that Mr. James told them in November of 1983 that he could help solve the crime but didn't know who did it (EH Tr. 340; see Ex. 44). The State's misrepresentation to trial counsel is clear since in Mr. Pickard's notes he states that Mr. James did in fact provide details of the crime and was in fact present during the homicide. The State's deception regarding the potential rebuttal evidence of Mr. James violated Brady and interfered with Mr. Melendez’ Sixth Amendment right to call witnesses in his behalf. Given the newly discovered evidence, including the existence of the transcript of Mr. James’ statement to Vernon James 3.850 relief is required for the error here.

The defense contended at trial that Vernon James either committed the murder or was present when it was committed. In that vein, Roger Alcott called Terry Barber as a witness regarding his observations at Mr. Baker’s the night of the homicide. Mr. Barber testified that he saw two black men he believed were Vernon James Bobo Landrum at Mr. Baker’s and that he had told the police (R. 576-577). Mr. Pickard responded by eliciting hearsay over a hearsay objection that he had checked with Mr. Landrum’s employer and he was working at the time of the homicide (R. 648-649). What was not disclosed to the defense was the fact police reports regarding the homicide were not written until over six months had passed (EH Tr. 17-19; Exs. 4, 5, 6, 7 8, 9). And there is no police reports indicating that anything was done to investigate Mr. Barber’s observations (EH Tr. 295). Had trial counsel known of the law enforcement’s failure to follow protocol and write contemporaneous reports, he would present that as impeachment (EH Tr. 337).

In Mr. Melendez’ case, the undisclosed exculpatory evidence was central to the theory of defense at the guilt phase: Mr. Melendez attempted to attack the credibility of key State witness David Luna Falcon and advance the defense was that someone else did the murder and that Vernon James was there and either did the murder or knows who did. The wealth of evidence which the jury did not hear verifies that Mr. Falcon testified falsely and that Mr. James, and not Mr. Melendez, was present for the murder. In February, 1984, David Luna Falcon told the police that while he and Mr. Melendez were using cocaine and drinking one evening, Mr. Melendez confessed to Mr. Baker's murder (R. 440-468). According to Mr. Falcon's trial testimony, Mr. Melendez told him that a man named John had driven Mr. Melendez and a black man to Mr. Baker's beauty school (R. 441). After the other man cut Mr. Baker's throat, the victim began "picking up the blood" and throwing it at his assailants (R. 443).

In May, 1984, Mr. Pickard was provided with a handwritten report regarding a home invasion and shooting at the Reagan house. In that report, Mr. Pickard was informed:

Aub. Police responded to an unknown neighbors call - uniform officer + head detective arrived - [Mr. Reagan] explained what happened + gave FALCON'S name . . .

* * *

P.D. Det. [Glisson] (Head Det.) told [Mrs. Reagan] she could be arrested ref. [her husband's] charges of 5-18-84 - "The more I look at this the more charges I could bring against your husband" - "If I lock up FALCON he'll just bond out and he may come back + get you" -

With threats Mrs. Reagan agreed not to sign any complaints. --

That afternoon Det. [Glisson] came to Mrs. Reagan and had her sign a waiver of prosecution. -- [Glisson] made Mrs. Reagan a promise that FALCON would not be back to bother her. –

(Ex. 30)(emphasis added). Mr. Pickard admitted at the evidentiary hearing that he did not provide Mr. Melendez’ trial attorney a copy of the handwritten report (EH Tr. 73).

In response to Mr. Falcon's criminal activities and Det. Glisson's conduct, the prosecutor instructed Det. Glisson:

I was contacted today by Tom Roper who advised me that we have a problem with our source on the Del Baker case. It seems Mr. Falcon got himself into some trouble with a firearm while supposedly working undercover for you making drug buys.

Agent Roper and myself have discussed the situation and we are both in agreement that until the Baker case is concluded in court, Falcon should not be worked on the street to make narcotics purchases.

(Ex. 31). In May, the prosecutor testified that he did not turn over this letter to Mr. Melendez’ trial attorney (EH Tr. 73).

Judge Alcott testified that the documents evidencing Mr. Falcon's role in the Reagan incident and the prosecutor's subsequent actions illustrated that "they didn't investigate that Reagan home invasion thing because it led to Mr. Falcon who was a critical witness." (EH Tr. 306). The Reagan incident was something that Judge Alcott wanted to use to undermine the key State witness’ credibility (EH Tr. 306).

Not only did the State suppress favorable evidence, but in fact, the State allowed Mr. Falcon to testify falsely about the Reagan incident. At trial, Mr. Falcon was asked: "Did you go to Mr. Reagan's house and shoot holes in his car with a gun?" (R. 457). Mr. Falcon responded: "No" (R. 457). The prosecutor did not correct this falsehood despite his direct knowledge of Mr. Falcon's involvement in the Reagan home invasion. In fact, the prosecutor was well aware of Mr. Falcon's participation in the Reagan incident and Det. Glisson's threats to the Reagan's so that the Reagans would waive prosecution.

In his June 5, 1984, letter to Det. Glisson, the prosecutor stated "It seems Mr. Falcon got himself into trouble with a firearm." (Ex. 31). Despite the prosecutor's knowledge of Mr. Falcon's illegal activities, he allowed him to say he did not know the Reagan’s and deprive the jury of valuable impeachment evidence at Mr. Melendez’ capital trial. In closing argument at the trial, the prosecutor having failed to disclose impeachment evidence concerning David Falcon told the jurors they would "have to decide if Mr. Falcon is a person worthy of belief or not" (R. 699). The prosecutor asked, "Why would [Falcon] lie?" (R. 704). Falcon would not lie, according to the prosecutor, "because he ha[d] nothing to gain in this case." (R. 705).

Furthermore, additional impeachment evidence about Mr. Falcon was never presented to the jury due to either trial counsel's failures to discover or the State's failure to disclose exculpatory evidence. Ms. Rivera and Ms. Colon knew about Detective Glisson's relationship with Mr. Falcon but were not asked to provide this information (PC-R1. 745, 741). Ms. Rivera and Ms. Colon both knew that Mr. Falcon had said that the police were paying him $5000 for his testimony against Mr. Melendez (PC-R1. 745, 741). Mr. Falcon also told Ms. Rivera that he had tried to get away to avoid testifying against Mr. Melendez but that the police were forcing him to testify (PC-R1 745). Ms. Colon knew that Mr. Falcon was angry at Mr. Melendez for refusing to sell drugs for him, refusing to help him in robberies and for interfering with his parents (PC-R1. 741). Because this information was not presented to the jury, Mr. Falcon was able to testify that he could not remember how much he was being paid to testify, implying that the amount was insignificant. The trial prosecutor capitalized on Mr. Falcon's deception and told the jury: "Oh, he got a little money from the Auburndale Police Department for helping them out on some drug cases . . . He had absolutely nothing to gain" (R. 705).

The State possessed evidence that Mr. Falcon was not an undercover agent or paid informant for the Florida Department of Law Enforcement as he testified at trial (PC-R1 426, 695). In fact, Mr. Falcon had been convicted of a murder in Puerto Rico and was released from prison after testifying against his co-defendants in a New Jersey multiple murder (PC-R1. 426).

The State also suppressed a sworn statement provided by David Falcon to Hardy Pickard which could have been used to impeach Mr. Falcon because of inconsistencies with his trial testimony (See Ex. 27). At the evidentiary hearing, Hardy Pickard testified that he did not provide the statement to Mr. Melendez’ trial attorney (EH Tr. 63). Mr. Falcon's sworn statement was inconsistent with his trial testimony in a couple of obvious ways. First, Mr. Falcon added details to his trial testimony that were not included in his sworn statement. At trial, Mr. Falcon testified that Mr. Melendez told him that Mr. Baker offered him one million dollars to take him to the hospital and Mr. Melendez refused Mr. Baker's offer for fear that Mr. Baker would go to the police (R. 443). This was not in his sworn statement (Ex. 27). Furthermore, Mr. Falcon told the jury: "After they [shot Mr. Baker], they pick up everything and they left back to wherever they were supposed to go, and the other black guy was picking up the traces of any kind of fingerprints or whatever . . ." (R. 444). Yet, in his statement he indicated that Mr. Melendez told him that John Berrien drove Juan Melendez and George Berrien to the beauty salon. At trial, Mr. Falcon never mentioned George Berrien by name, referring to him only as "the other black guy" (R. 399). Judge Alcott testified that he would have wanted the statement so that he could show the inconsistencies in order to impeach Mr. Falcon (EH Tr. 303).

Judge Alcott described the importance of David Falcon's testimony and credibility at Mr. Melendez’ trial:

Q: And in connection with this case do you recall that the allegation was that Mr. Melendez committed this crime with George Berrien?

A: Yes.

Q: And do you recall that George Berrien was not charged?

A: Right. In fact he testified at trial.

Q: And do you recall that with reference to George Berrien obviously David Luna Falcon's testimony would not be admissible since it was regarding a purported statement made by Mr. Melendez?

A: Okay.

Q: Okay. So to some extent would it be fair to say the difference in the two cases is the presence of David Luna Falcon, in terms of the evidence that would be available to prosecute George Berrien versus the evidence that was available to prosecute Juan Melendez?

A: Oh, yeah. I mean they were -- the difference between the two cases is supposedly my client admitted and Mr. Berrien didn't.

Q: Okay. So the difference between being able to prosecute and get a conviction and not prosecuting at all is the presence of David Luna Falcon?

A: That's correct.

(EH Tr. 301-302)(emphasis added). Yet, the State suppressed crucial impeachment evidence regarding Mr. Falcon and in fact allowed Mr. Falcon to testify falsely at Mr. Melendez’ trial.

In the same vein as the Falcon sworn statement, Hardy Pickard secured several other sworn statements from witnesses by using investigative subpoenas. (See Exs. 12, 13, 15, 16, 17, 18, 19, 22, 23, 24, 25 and 26). Mr. Pickard testified that he would not have turned over any of the sworn statements obtained from these witnesses (EH Tr. 35, 45). Hardy Pickard admitted that he issued the subpoenas as "State of Florida vs. John Doe" because it made it difficult for opposing counsel to know that witnesses were providing sworn statements (EH Tr. 48).

Hardy Pickard's behavior was improper. Florida Bar v. Cox, — So. 2d — (Fla. May 17, 2001), 2001 WL 521314 (Fla. ). The State Attorney subpoena power was not meant to be exercised after an indictment had been returned. The year before Mr. Melendez’ capital trial, in State v. Barreiro, the State appealed a trial court's order quashing an investigative subpoena used by the State to gain access to records. 432 So. 2d 138, 139 (3rd DCA 1983). In addressing the State's appeal the Third District Court of Appeals addressed the power of the State Attorney to issue investigative subpoenas. The Court recognized that one restriction which has been imposed on the State's power "is that it not be exercised so as to defeat the discovery provisions of the Florida Rules of Criminal Procedure." Id. at 140. The Court found that such a violation occurred when the State used its subpoena power to conduct ex parte meetings with defense witnesses provided to the State via a defense witness list:

Id. at 140, n.5. See also Able Builders Sanitation Co. v. State, 368 So. 2d 1340 (3d DCA 1979)(holding that state attorney must give reasonable notice to defense counsel as to time and place subpoenaed witness is to be examined and allow defense counsel to be present); Collier v. Baker, 20 So. 2d 652 (Fla. 1945)(holding that State could not use process of court to require defense witnesses to submit to an interrogation).

Despite the clear dictate that investigative subpoenas were not be used after an indictment was returned, Hardy Pickard flagrantly disregarded the law in order to gain a tactical advantage at Mr. Melendez’ capital trial. His use of investigative subpoenas subverted the discovery process. In fact, Assistant State Attorney Pickard used an investigative subpoena to interview Dorothy Rivera, a defense witness, listed by Mr. Melendez in his discovery response. Mr. Pickard then took the information obtained from his ex parte communications with Ms. Hunter and requested further investigation of her. See Exhibit 20.

John Berrien, the only other witness who implicated Mr. Melendez in the crime, provided Mr. Pickard with a sworn statement when he was ordered to appear at the State Attorney's Office. Mr. Berrien's trial testimony is riddled with inconsistencies from his sworn statment. The most important inconsistency is that in his sworn statement he told Mr. Pickard that on the way to the beauty salon John Berrien stopped at Gilbert Luna's house (Ex. 13). Gilbert Luna was David Falcon's brother. Judge Alcott testified to the importance of the Luna - Berrien connection:

(EH Tr. 299). As a result of John Berrien's sworn statement Assistant State Attorney Pickard directed Detective Glisson to speak to Mr. Luna because he "probably has some helpful information about Melendez." (Ex. 14). There is no indication what information Mr. Luna may have had and Mr. Luna's name was never provided to Mr. Melendez’ trial attorney as a person who has material information about the case. All we know is that by the time of trial, John Berrien had deleted reference to Gilbert Luna from his testimony.

Further, some of the witnesses provided leads that Mr. Melendez’ defense team was deprived from investigating due to the State's suppression of the statements. For example, Sharon Jones told Assistant State Attorney Hardy Pickard that a man named Terry Jones threatened to kill Mr. Baker (Ex. 22). She further informed the State in her sworn statement that on the day of the murder she saw Terry Jones and Carl Watts sitting across from the beauty salon (Ex. 22). She told Mr. Pickard that both of those individuals were homosexuals (Ex. 22). In light of Mr. James’ statement to Arthur Meeks, that Mr. James accompanied two homosexuals to Mr. Baker's beauty salon to help settle an argument, this information is relevant and should have been provided to Mr. Melendez.

All of the sworn statements obtained by Hardy Pickard were required to be disclosed. Florida Rule of Criminal Procedure 3.220(b) provides in pertinent part that the State "shall disclose" the statement of any person with relevant information to the crime charged. A "statement" includes "any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording". Any doubt about this definition was clarified by the Florida Supreme Court in its recent Young opinion when this Court found that the content of a prosecutor’s notes of an interview of a key witness was subject to disclosure. Young v. State, 739 So. 2d at 559-560. The Florida Supreme Court held:

Young v. State, 739 So. 2d 553, 558 (Fla. 1999) (emphasis added).

Hardy Pickard’s actions must construed as a whole. His conduct demonstrates a deliberate intention to thwart state and federal law. His behavior can only be explained by a desire to win at all cost. There can be no question that Mr. Melendez’ right to due process was trampled upon. There can be no question that there a reasonable probability (defined as something less than more likely than not) that had the jury heard of all of the evidence suppressed by Mr. Pickard, they would have had a reasonable doubt and would have acquitted. Hoffman v. State, — So.2d — (Fla. July 5, 2001), 2001 WL 747399 (Fla.).

INEFFECTIVE ASSISTANCE OF COUNSEL.

466 U.S. 668, 685 (1984). In order to insure that a constitutionally adequate adversarial testing, and hence a fair trial, occur, certain obligations are imposed upon defense counsel. Defense counsel is obligated "to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland, 466 U.S. at 685. Where defense counsel fails in his obligations, a new trial is required if confidence is undermined in the outcome. Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986).

In his opening statement, Roger Alcott told the jury he would presenting the testimony of Vernon James (R. 243-244). During the trial, he did present Terry Barber as a witness (R. 568-581). Mr. Barber indicated that he had stopped by Mr. Baker’s the night of the homicide and had seen two black men there with Mr. Baker (R. 576-578). One of them, he believed was Vernon James (R. 575). In his closing argument at trial, trial counsel emphasized the importance of Mr. James to Mr. Melendez’ defense:

(R. 710)(emphasis added). In fact, the jury never heard Mr. James’ taped statement wherein he stated that Juan Melendez, a Puerto Rican, was not present when Mr. Baker was murdered. Instead, the jury only heard from Roger Mims, a convicted felon. The jury did not hear from Dwight Wells even though Vernon James had told Roger Alcott of his statement to Dwight Wells. At the 1996 evidentiary hearing, Dwight Wells, an attorney who previously represented Mr. James in a criminal matter testified that Mr. James confessed to him. Mr. Wells described Mr. James’ confession:

(PC-R2. 194-95). However, in denying Mr. Melendez’ second Rule 3.850 motion Judge Maloney stated:

(PC-R2. 427).

In light of the newly discovered transcript, this Court must revisit the prior findings of the 1996 evidentiary hearing. The transcript makes clear that Mr. Wells was in fact informed by Mr. James of his involvement in the murder of Del Baker. It is also clear that Mr. James told Roger Alcott of his conversation with Mr. Wells, yet Judge Alcott failed to investigate. Roger Alcott testified that "[t]o be honest with you I probably never even thought about calling Dwight Wells to testify as a witness about what James had told him" (EH Tr. 293). This was deficient performance.

At the most recent evidentiary hearing, Mr. Hardy Pickard admitted during questioning that in 1996 he failed to disclose the transcript of the taped statement of Vernon James:

Q: You would have had that transcript at the time of the 1996 hearing when Dwight Wells testified?

A: Absolutely. I would have it since back at the time of the first trial a copy of this was in my file . . .

* * *

Q: Now, when Judge Maloney found there was no corroboration from Dwight Wells's claim that Vernon James admitted to him that he was present at the time of the homicide, you then knew that that transcript existed and you did not inform Judge Maloney; is that fair?

A: I was aware that this transcript existed, that's correct.

Q: So that transcript was not provided to Judge Maloney in 1996 when he found that Dwight Wells's memory was hazy; it was incredible that he would have had information indicating that Vernon James was present and participated in any fashion in this murder. And Judge Maloney as a result did not believe or credit Dwight Wells's testimony?

A: Well, I can't say what Judge Maloney believed or didn't believe.

Q: Well, it's in the order.

A: Okay.

Q: Okay. At that point in time when that order came out you had that transcript?

A: Absolutely. It was in our file.

Q: And you did not provide it to the Court?

A: I did not give Judge Maloney a copy of this particular transcript.

Q: Okay. You didn't feel it was your duty?

A: I didn't think about it to tell you the truth.

(EH Tr. 88-90).

The State's failure to provide this crucial evidence to Judge Maloney when he was determining the validity of Mr. Melendez’ conviction and sentence was error. Further, as Ms. Anderson testified, the State also deprived Mr. Melendez from challenging his conviction based on his constitutional right to effective assistance of trial counsel (EH Tr. 259-260). The State's suppression of material, favorable evidence from Mr. Melendez’ collateral counsel, at a minimum, requires this Court to revisit the question of whether Mr. Melendez received constitutionally adequate assistance of counsel. The transcript of Mr. James admitting to being present at the scene of the murder and informing Judge Alcott that Mr. Melendez was not present puts Mr. Melendez' case in a whole new light. Trial counsel’s failure to consider investigating and presenting Dwight Wells’ testimony regarding Vernon James’ statement to him was unreasonable. Judge Alcott presented Roger Mims, because he obviously wanted the jury to know that there was evidence corroborating Terry Barber’s observation of Vernon James. He has acknowledged that he would rather have had someone with more credibility (EH Tr. 289-290). Yet, he did, and he neglected to develop and present Dwight Wells’ testimony. This was deficient performance which prejudiced Mr. Melendez. Certainly when this claim is considered cumulatively with the Brady violation that occurred in this case, confidence is undermined in the outcome. State v. Gunsby. A new trial is required.

NEWLY DISCOVERED EVIDENCE OF INNOCENCE UNDER JONES.

The Florida Supreme Court has recognized that newly discovered evidence of innocence warrants a new trial where it establishes that had the jury known of the new evidence it probably would have probably acquitted. Jones v. State, 591 So. 2d 911 (Fla. 1991). Here, the new evidence of innocence in conjunction with the new evidence presented at the 1996 evidentiary hearing establishes that the jury probably would have acquitted had all of this evidence been known. When viewed in conjunction with other evidence never presented because of the State's discovery violations and/or trial counsel's deficient performance, there can be no question that Mr. Melendez’ conviction cannot stand.

Shortly after the murder, Mr. James arrived at Henry Davis’, a local drug dealer and pimp, trailer "buggy eyed and bloody" (EH Tr. 186). Janet Conaway, formerly Janet Gauntlett, described Mr. James as "bloody all down the front" (EH Tr. 187). Henry Davis ordered Ms. Conaway to find Mr. James some clean clothes and to burn his bloody clothes (EH Tr. 187). She was then directed to escort Mr. James to the Scottish Inn Motel (EH Tr. 189). It was at that point that she learned that the man she was told to spend the evening with was Vernon James (EH Tr. 188). Immediately following the murder, Mr. James’ confessed his involvment in the homicide. Mr. James told Ms. Conaway to comply with his demands or she could "wind up like -- like the other person. He killed one person and he could do it again." (EH Tr. 190).

The next morning Ms. Conaway saw that Delbert Baker was murdered at his beauty salon (EH Tr. 191). Despite Mr. Davis’ threat to keep her mouth shut about Mr. James’ involvement in the homicide, Ms. Conaway spoke to an officer about what she knew about Mr. Baker's murder (EH Tr. 192). The police officer called her a unhuman being and ignored her information (EH Tr. 193).

Stanley Brookshire also stayed at the Scottish Inn Motel on the evening of the Baker homicide. Mr. Brookshire, who knew Mr. James, saw him and a couple of girls at the motel and Mr. James admitted that he had "offed Mr. Del" (EH Tr. 173). Mr. James showed Mr. Brookshire a couple of rings that he had taken from Mr. Del (EH Tr. 174). His testimony confirms and corroborates Ms. Conaway.

In addition, as outlined in earlier sections of this closing memorandum, Mr. Melendez presented the testimony of witnesses not previously called who testified regarding statements made by Vernon James acknowledging his participation in the murder of Del Baker. These witnesses included Theodore Spencer, Alphonso Anderson, Kenneth Graham, and Angelia Haughbrook. The testimony of these witnesses must be evaluated cumulatively with the previously presented witnesses and with the evidence supporting Mr. Melendez’ Brady and ineffectiveness claims.

CUMULATIVE ANALYSIS.

In Lightbourne, the Florida Supreme Court explained the analysis to be used when evaluating a successive motion for post-conviction relief:

In this case the trial court concluded that Carson's recanted testimony would not probably produce a different result on retrial. In making this determination, the trial court did not consider Emanuel's testimony, which it had concluded was procedurally barred, and did not consider Carnegia's testimony from a prior proceeding. The trial court cannot consider each piece of evidence in a vacuum, but must look at the total picture of all the evidence when making its decision.

When rendering the order on review, the trial court did not have the benefit of our recent decision in Jones v. State, 709 So. 2d 512, 521-22 (Fla.) cert. denied, 523 U.S. 1040 (1998), where we explained that when a prior evidentiary hearing has been conducted, "the trial court is required to 'consider all newly discovered evidence which would be admissible' at trial and then evaluate the 'weight of both the newly discovered evidence and the evidence which was introduced at the trial'" in determining whether the evidence would probably produce a different result on retrial. This cumulative analysis must be conducted so that the trial court has a "total picture" of the case. Such an analysis is similar to the cumulative analysis that must be conducted when considering the materiality prong of a Brady claim. See Kyles v. Whitley, 514 U.S. 419, 436 (1995).

Lightbourne, 742 So. 2d at 247-248(empahsis added)(citations omitted).

The "total picture" in Mr. Melendez’ case has been further completed by the evidence introduced at the most recent evidentiary hearing, held on May 29 - 30, 2001: Vernon James informed his close friends that he was setting up a robbery of Delbert Baker, who was known in the community as "Mr. Del" (EH Tr. 147, 388). In fact, Vernon James invited his friends to participate in robbing "this faggot" (EH Tr. 147). On the evening of the homicide, Mr. James was seen entering Mr. Baker's beauty salon (EH Tr. 391). He was also observed by Terry Barber inside Mr. Baker’s salon (R. 575). Mr. James told Roger Alcott:

RA: Okay. Uhm, on the day that Mr. Del was killed, uh, before he was killed, were you in the shop talking with him?

VJ: Yes, sir.

(Ex. 34 at 3). Further, Mr. James was present and Mr. Melendez was not when Mr. Baker was shot (Ex. 34 at 1).

Indeed, Mr. James did not confine his admissions to his friends, he also told law enforcement, several defense attorneys and a state attorney investigator that he was involved in the Delbert Baker homicide. In fact, on September 7, 1984, less than ten (10) days before the start of Juan Melendez’ trial, Vernon James admitted that he was present to Arthur Meeks, a State Attorney Investigator who was directed to speak to Mr. James by Hardy Pickard (Exs. 36 & 37). Mr. James told Mr. Meeks that he "went to Del's with 2 homos - waited outside when they killed Del." (Ex. 37). "He went there to settle argument with homos + Del." (Ex. 37).

The primary witness who testified that Mr. Melendez had made an inculpatory statement, David Falcon, was a paid confidential informant, who was protected by the Office of the State Attorney for the Tenth Judicial Circuit and the Auburndale Police Department. In the months preceding Mr. Melendez’ trial, Mr. Falcon threatened Mr. and Mrs. Reagan and their eight year old son at gunpoint (Exs. 29, 30). Mr. Melendez’ prosecutor was so concerned with Mr. Falcon's criminal endeavors that he instructed the police to discontinue using Mr. Falcon as a confidential informant pending the trial (Ex. 31). At trial, Mr. Falcon testified falsely as to his involvement in the Reagan home invasion, the compensation he received for his testimony and his relationship with the State. In light of the evidence regarding Vernon James’ involvement in the Baker homicide, Mr. Falcon's testimony can only be viewed as a falsehood manufactured in order to obtain money from law enforcement and avoid criminal prosecution for his own illegal activities. Vernon James made statements to no less than fifteen individuals, including a State Attorney Investigator, defense counsel, a trial investigator and former FBI Agent, an FDLE agent and a defense attorney who previously had represented Mr. James. His statements included details of the crime and he even showed witnesses the fruits of crime: jewelry, drugs and money. Mr. James’ taped statement proves that he was present and participated in the murder of Delbert Baker and that Mr. Melendez did not.

Mr. Melendez’ jury never heard that Mr. James told his friends before the crime that he was going to rob the beauty salon. He even asked some of them if they wanted to participate in the crime. And on the evening of the crime, Terry Barber and a confidential informant placed Mr. James at the scene of the crime shortly before the murder occurred. Later in the evening, witnesses saw Mr. James was wearing bloody clothes and he told them that he needed to get off the street for a few days. The evidence conclusively proves that at a minimum Mr. James was present at the scene of the homicide and he knew that Mr. Melendez was not present and did not participate in the robbery and homicide of Mr. Baker.

The State's case at trial was extremely weak, and Mr. Melendez’ conviction and death sentence rest solely on the testimony of two felons. Absolutely no physical evidence connected Mr. Melendez to the murder of Delbert Baker. In light of the weakness of the State's case at trial and the additional evidence presented in post-conviction, Mr. Melendez was denied a reliable adversarial testing. The jury never heard the considerable and compelling evidence that would have shown that Melendez did not commit the murder, and was not present at the time that the murder was committed. A wealth of evidence establishing that, at a minimum, Vernon James was present when the murder was committed and was thus a witness who completely exonerated Mr. Melendez of any involvement was not presented to the jury. Whether the prosecutor failed to disclose this significant and material evidence or whether the defense counsel failed to do his job, no one disputes the jury did not hear the evidence in question. Yet, in order "to ensure that a miscarriage of justice [did] not occur," Bagley, 473 U.S. at 675, it was essential for the jury to hear the evidence. In light of the substance of the exculpatory evidence which is now known, confidence is undermined in the outcome of the trial since the jury did not hear the evidence. Garcia v. State, 622 So. 2d at 1331.

Confidence in the outcome of Mr. Melendez’ trial is undermined because the unpresented evidence was relevant and material to Mr. Melendez’ guilt of first degree murder. Here, exculpatory evidence did not reach the jury. Moreover, the prosecution interfered with defense counsel's ability to provide effective representation and insure an adversarial testing. The prosecution denied the defense the information necessary to alert counsel to the avenues worthy of investigation and presentation to the jury, and in fact, affirmatively misled defense counsel. Moreover, trial counsel failed to discover and present exculpatory evidence. Mr. Melendez was convicted and sentenced without a constitutionally adequate adversarial testing.

Prosecutors have an affirmative duty to correct false or misleading evidence. If the prosecutor intentionally or knowing presents false or misleading evidence in order to obtain a conviction or sentence of death, the conviction and/or death sentence must be set aside unless the error is harmless beyond a reasonable doubt. Kyles, 115 S.Ct. at 1565 n.7. Similarly, a prosecutor’s deliberate deception of the defendant and his counsel warrants the same standard. Gray v. Netherland, 116 S.Ct. 2074, 2082 (1996). Here, the prosecutor deliberately deceived Judge Alcott about the reason for listing Arthur Meeks as a rebuttal witness. Had Judge Alcott known that Arthur Meeks obtained an inculpatory statement from Mr. James he would have been able to use that information in various ways to assist Mr. Melendez’ defense:

(EH Tr. 289). Judge Alcott also agreed that Mr. James’ statement to Mr. Meeks may have been helpful to defeat the credibility attack against Roger Mims regarding jail house bravado and the timing of Mr. Mims appearance in the case. Further, the disclosure of Mr. Meeks knowledge of a Vernon James statement would have prompted Judge Alcott to depose Mr. Meeks (EH Tr. 331-332). Due to the State's suppression of Mr. James’ statement, Mr. Melendez’ trial counsel was prevented from being able to make informed decisions about trial strategy (EH Tr. 333).

Hardy Pickard orchestrated a scenario so that Mr. Melendez was unable to inform the jury of Mr. James’ statements which placed Mr. James at the scene of the homicide and exonerated Mr. Melendez. On the day that Judge Alcott planned to call Vernon James as a witness, the prosecutor informed the Court that based on the new information received from Agent Roper, he believed, over defense counsel's objection, that Mr. James should be informed of his Fifth Amendment Right (R. 591). He also informed that Court that he would not be granting Mr. James immunity so that he could testify (R. 591). After being appointed counsel and consulting counsel, Mr. James invoked his Fifth Amendment privilege to be free from self-incrimination. (R. 595). Mr. Pickard was successful in keeping the jury from knowing that Vernon James had acknowledged to five members of the criminal justice system that Terry Barber’s belief that he saw Vernon James at Mr. Baker’s was accurate. Mr. Pickard in keeping the truth from coming out, has been successful in subverting justice for seventeen years and preserving his win. The time has come for justice to prevail and for Mr. Melendez to have what the constitution guaranteed, a constitutionally adequate adversarial testing that conforms with the rules of law.

Mr. Melendez’ evidence of innocence is overwhelming: three witnesses provide Mr. Melendez with an alibi, Vernon James was at Mr. Baker’s when the murder happened, he was later seen on the night of the homicide wearing bloody clothes, Mr. James admitted being present at the scene of the homicide to several individuals and was in possession of jewelry matching the description of Mr. Baker's stolen jewelry, including to a State Attorney's investigator and in a taped statement. This evidence proves that Mr. Melendez is innocent of the crimes for which he has been convicted and sentenced to death. Relief must be granted.

WHEREFORE, undersigned counsel moves this Court to enter an order vacating Mr. Melendez’ conviction and death sentence.

COUNSEL HEREBY CERTIFIES that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record on July 9, 2001.

Respectfully submitted,

Special Assistant CCC-NR

Florida Bar No. 0754773

BRET B. STRAND

Assistant CCC-NR

Florida Bar No. 0780431

LINDA McDERMOTT

Assistant CCC-NR

Florida Bar No. 0102857

1533 South Monroe Street

Tallahassee, Florida 32301

(850) 487-4376

Attorneys for Mr. Melendez

Copies furnished to:

The Honorable Barbara Fleischer

Circuit Court Judge

Courthouse Annex

800 E. Kennedy Blvd.

Tampa, Florida 33602-4146

Hardy Pickard

Assistant State Attorney

Office of the State Attorney

185 North Broadway

Bartow, Florida 33830

Candance Sabella

Assistant Attorney General

Office of the Attorney General

Westwood Building, Seventh Floor

2002 North Lois Avenue

Tampa, Florida 33607