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TABLE OF CONTENTS

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Adams v. Wainwrjaht

709 F.2d 1443 (1lth'Cir. 1983) . . . . . . . , .

Bertolotti v. Stat-p

534 So.2d 386 (Fla.'1988) e . e b . . . . . . . .

Bradv v. Marvland

373 U.S. 83, 83 Sk. 1194, IO L.Ed.2d 215 (1963)

588 So.2d 983 (Fla. 1991) . . . . . . . . . .

Duest v. Ducrcrer,

555 So.2d 849 (Fla. 1990) . . . . . . . . . .

Francis v. Barton

581 So.2d 583 (Flal), cert..., 501 U.S.

1245, 111 S.Ct. 2879, 115 L.Ed.2d 1045 (1991)

Green v. State,

538 So.2d 647 (Fla. 1991) .

fIaIjburton v. Fingletary

691 So.2d 466 (Fla. 1997; .

Hedswood v. State

575 So.2d 170 (Fl:. 1991) .

Uv..

586 So.2d 1033 (Fla. 1991)

tJames v. State,

453 So.2d 786 (Fla. 1984) .

Johnson v. State,

1051, 104 s.ct. 1329, 79 L.Ed.2d 724 (1984) a

Jones v. State

591 So.2d 911 \Fla. 1991) . . . . . . . . . *

Jones State

591 So:2d 913 i1993) . . . . . . . . . e . .

PAGE NO.:

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40, 42, 48

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42, 43, 48

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42

44

45

44

32

40

ii

Lishtbourse . State

549 So.2d L3:4 (Fk'1989) . . . . . . . . . . . . . . . . . 41

uedina v. State

466 So.2d 1046 iFla. 1985) . . . . . . . . . . . . . . . . . 44

Medina v. St-m

573 So.2d 293 (ila. 1990)............... e .* 46

Ana v. State, 690 So.2d 1241 (Fla. 1997) . . . . . . . . . 40

Melendez v, Florida,

510 U.S. 934, 114 s.ct. 349, 126 L.Ed.2d 313 (1993) . e a . . . 7

Melendez v. Siasletary,

644 So.2d 983 (Fla. 1994) . . . , . . . . . . . . . . . , , . . 9

498 So.2d 1258 (Fk. 1986) . . . . . . . . . . . . . . . , . e 2

Melendex v, State

612 So.2d 1366 (Fia. 1992) . . . . , . . . e . . . . . 7, 31, 40

&&Qggl v. Wainwrjqk,

725 F.2d 1511 (11th Cir. 1984) . . , . e . . . . . . . . . , 49

Roberts v. State,

568 So.2d 1255 (1990) . . . , , . - . e b . . . . . . . . . , 45

no v. State

5'70 So.2d 289 (Fl:. 1990) . . e e a . . . . . . . . . . . . . 41

Squires v. State

565 So.2d 318 (Fia. 1990) . . ..*.*.... * . . . . . . 40

466 U.S. 668, 104 S.Ct. ;052, 80 L.Ed.2d 674 (1984) b e . . . 48

ThomDson v. State

548 So.2d 198 (Fl;. 1989) . . . . ...* . . . . . . . . . . 45

United States v. Bacrlev

473 U.S. 667, 105 S.Ct.' 3375, 87 L.Ed.2d 481 (1985) . . . . . 43

United States v. Meros

866 F.2d 1304 (11th Ci;. 1989) . . . . . . . . . . . . . . . 42

iii

STATEMENT OF THE CASE

Procedural Historv

Appellant, Juan Roberto Melendez, and codefendant, John Arthur

Berrien, were charged pursuant to an indictment issued in Polk

County, Florida, with one count each of first degree murder and

robbery. Melendez entered pleas of not guilty.

Trial commenced on September 17, 1984. On September 20, 1984,

the jury found Melendez guilty of first degree murder and robbery.

The penalty phase was conducted on September 21, 1984. The

sentencing jury returned an advisory sentence of death by a vote of

9 - 3. Immediately thereafter, the trial court imposed a sentence

of death. Written findings supporting the death sentence were

entered on October 3, 1984. The court found the following

aggravating circumstances:

1 . The defendant has previously been

convicted of a felony involving the use or

threat of violence to some person.

2 . The crime for which the defendant is to

be sentenced was committed while he was

engaged or an accomplice in the commission of

the crime of robbery,

3 . The crime for which the defendant is to

be sentenced is especially wicked, evil,

atrocious or cruel.

4 . The crime for which the defendant is to

be sentenced was committed in a cold,

calculated, premeditated manner without any

pretense of moral or legal justification.

(R 817-18)

1

court *

CLAIM VII: THE JURY WAS MISLED AND

INCORRECTLY INFORMED ABOUT ITS FUNCTION AT

CAPITAL SENTENCING, IN VIOLATION OF THE EIGHTH

AND FOURTEENTH AMENDMENTS.

CLAIM VIII: MR. MELENDEZ'S DEATH SENTENCE

RESTS UPON AN UNCONSTITUTIONAL AUTOMATIC

AGGRAVATING CIRCUMSTANCE.

CLAIM IX: JUAN MELENDEZ WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL AT BOTH THE

GUILT-INNOCENCE AND SENTENCES PHASES OF HIS

TRIAL, IN VIOLATION OF THE SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS.

CLAIM X: THE HEINOUS, ATROCIOUS OR CRUEL

AGG-VATING CIRCUMSTANCE WAS APPLIED TO MR.

MELENDEZ'S CASE IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS.

CLAIM XI: THE COLD, CALCULATED, AND

PREMEDITATED AGGRAVATING CIRCUMSTANCE WAS

APPLIED TO MR. MELENDEZ'S CASE IN VIOLATION OF

THE EIGHTH AND FOURTEENTH AMENDMENTS.

CLAIM XII: MR. MELENDEZ'S DEATH SENTENCE MUST

BE VACATED BECAUSE THE COURT FAILED TO PROVIDE

A FACTUAL BASIS IN SUPPORT OF THE PENALTY.

CLAIM XIII: BECAUSE THE FAILURE ON THE PART

OF DEFENSE COUNSEL, MR. MELENDEZ WAS DENIED AN

INDIVIDUALIZED AND RELIABLE SENTENCING

DETERMINATION BECAUSE THERE WERE NO EXPERTS TO

EVALUATE COMPETENCY OR MITIGATION, IN

CONTRAVENTION OF THE SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS.

CLAIM XIV: DURING THE COURSE OF VOIR DIRE

EXAMINATION THE PROSECUTION AND THE COURT

IMPROPERLY ASSERTED THAT SYMPATHY TOWARDS MR.

MELENDEZ WAS AN IMPROPER CONSIDERATION IN

VIOLATION OF THE EIGHTH AND FOURTEENTH

AMENDMENTS.

CLAIM XV: MR. MELENDEZ WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS

ATTORNEY FAILED TO PRESENT KNOWN EXCULPATORY

4

EVIDENCE TO THE JURY IN VIOLATION OF THE

SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT

RIGHTS.

CLAIM XVI: THE PROSECUTOR'S CLOSING ARGUMENT

IMPROPERLY DIMINISHED THE JURY'S SENSE OF

RESPONSIBILITY IN DETERMINING PENALTY AND

THEREBY DEPRIVED MR. MELENDEZ OF HIS EIGHTH

AND FOURTEENTH AMENDMENT RIGHTS TO AN

INDIVIDUALIZED SENTENCING.

CLAIM XVII: JUAN MELENDEZ WAS DENIED HIS

RIGHT TO FUNDAMENTAL DUE PROCESS AND A FAIR

TRIAL BY A COMBINATION OF FACTORS, IN

CONTRAVENTION OF THE FIFTH, SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENTS.

the circuit court summarily denied relief.

An appeal from the denial of the motion for post conviction

raised the following allegations:

ARGUMENT I: THE RULE 3.850 COURT'S SUMMARY

DENIAL OF MR. MELENDEZ'S MOTION TO VACATE

WITHOUT AN EVIDENTIARY HEARING WAS ERRONEOUS

AS A MATTER OF LAW AND FACT.

ARGUMENT II: THE STATE'S INTENTIONAL

WITHHOLDING OF MATERIAL AND EXCULPATORY

EVIDENCE AND ITS RELIANCE UPON FALSE EVIDENCE

DEPRIVED MR. MELENDEZ OF HIS FIFTH, SIXTH,

EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS.

ARGUMENT III: JUAN MELENDEZ WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL AT THE

GUILT-INNOCENCE PHASE OF HIS TRIAL, IN

VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS.

The state habeas was denied by this Court on September 8,

v. Slnsletary, 644 So.2d 983 (Fla. 1994). The

subsequent motion for rehearing was denied on November 16, 1994.

Melendez then filed a Petition for Writ of Habeas Corpus in

the United States District Court, Middle District on October 18,

ISSUE I: AN INNOCENT MAN HAS BEEN CONVICTED

AND SENTENCED TO DIE BECAUSE VIOLATIONS OF

RIGHTS UNDER THE SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION

HAVE PREVENTED CRITICAL EVIDENCE FROM BEING

DISCLOSED TO MR. MELENDEZ'S JURY.

ISSUE II: JUAN MELENDEZ WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL AT THE

INNOCENCE PHASE OF HIS TRIAL, IN VIOLATION OF

THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

ISSUE III: THE WITHHOLDING OF MATERIAL AND

EXCULPATORY EVIDENCE BY THE STATE OF FLORIDA

AND ITS RELIANCE UPON FALSE EVIDENCE DEPRIVED

MR. MELENDEZ OF HIS FIFTH, SIXTH, EIGHTH, AND

FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED

STATES CONSTITUTION.

ISSUE IV: FAILURE OF FLORIDA LAW ENFORCEMENT

AGENCIES TO COLLECT AND PRESERVE EVIDENCE AT

THE SCENE OF THE CRIME PREVENTED THE JURY FROM

CONSIDERING ALL INFORMATION CONCERNING THIS

MATTER IN DENIAL OF MR. MELENDEZ'S RIGHT TO

DUE PROCESS OF THE LAW UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

ISSUE V: JUAN MELENDEZ WAS DENIED THE

EFFECTIVE ASSISTANCE OF COUNSEL AT THE

SENTENCING PHASE OF HIS TRIAL, IN VIOLATION OF

THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.

9

Melendez moved to hold the federal proceedings in abeyance

pending the outcome of a second motion for post conviction relief

filed in state court. The federal habeas corpus petition is still

pending.

Melendez filed his second motion for post-conviction relief on

September 13, 1994, raising the following claims:

CLAIM I: NEWLY DISCOVERED EVIDENCE

ESTABLISHES THAT MR. MELENDEZ IS INNOCENT OF

THE OFFENSE FOR WHICH HE WAS CONVICTED AND

SENTENCED TO DEATH AND THUS, HIS CONVICTION

AND DEATH SENTENCE VIOLATE THE EIGHTH AND

FOURTEENTH AMENDMENTS;

CLAIM II: MR. MELENDEZ WAS DENIED AN

ADVERSARIAL TESTING BECAUSE THE STATE WITHHELD

MATERIAL EXCULPATORY EVIDENCE AND PRESENTED

FALSE EVIDENCE IN VIOLATION OF MR. MELENDEZ'S

CONSTITUTIONAL RIGHTS. DEFENSE COUNSEL'S

REPRESENTATION WAS INEFFECTIVE IN VIOLATION OF

FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

An evidentiary hearing was held before the Honorable Dennis

P . Maloney, Circuit Court Judge in and for the Tenth Judicial

Circuit on the second 3.850 motion on May 23 and 24, 1996. Judge

Maloney entered an Order denying the motion on July 17, 1996. (PCR

425-28) (Attached as Exhibit C) Melendez's motion for rehearing

was denied on August 6, 1996. (PCR 433) The instant appeal was

filed on August 29, 1996.

11

STAT- FACTS

A. Trial

In the opinion affirming Melendez's original conviction and

sentence, this Court set forth the salient facts as follows:

Police responded to a call from the victim's

sister on the evening of September 13, 1983,

and found the body of Delbert Baker on the

floor in the back room of his beauty school in

Auburndale. His throat had been slashed, and

he had been shot in the head and shoulders.

No jewelry was found on his body.

John Berrien testified at trial that there was

an occasion around the time of September 12,

1983, on a rainy day that he, his cousin

George Berrien, and appellant were together

and appellant asked him to drive him to

Auburndale so he could get his hair done and

pick up some money. The three of them left at

about 4 p.m. Appellant had a bulge in the

back of his pants that John suspected was a

gun. George and appellant said to pick them

up from Mr. Del's beauty school in about one

and one-half to two hours, and he did so. The

next day George asked John to drive him to the

train station so that he could go to Delaware

to see his children. Appellant went with them

to the station and gave George two rings, a

watch an a gun to sell in Wilmington. John

had seen appellant with watches and rings

before, but could not say if they were the

same ones. The watch looked like one

appellant previously had tried to sell him.

Amtrak records reflecting that a Mr. G.

Berrien made a reservation on September 14,

1983, to go from Lakeland to Wilmington,

Delaware, and a ticket lift indicating that

the train was actually boarded were introduced

into evidence. There was testimony that the

victim had worn his missing wrist watch, gold

bracelet and four diamond rings for years and

that he had been wearing them on the day of

12

the murder. A bank bag containing $50 in

petty cash was missing from the victim's desk

drawer.

David Falcon, a convicted felon, testified

that several months after the murder appellant

told him of having participated in the crimes.

According to Falcon's rendition, appellant and

another had made an appointment with the

victim because he was supposed to have money

and jewelry. The driver, John, stayed in the

car. Appellant and his accomplice went

inside, and the latter cut the victim's

throat. The victim begged them to take him to

a hospital, but appellant said that that could

not be done because the victim would tell the

police. Appellant then shot him in the head.

The perpetrators cleaned up any fingerprints

and took jewelry and money.

George Berrien testified for the defense and

denied riding with appellant in the car to

Auburndale and said he had seen him only once

before at his cousin John's house. Appellant

testified and denied culpability. A prisoner

named Roger Mims testified that his cellmate,

Vernon James, told him that he, his partner

and a homosexual killed Baker. There was

police testimony that Harold Landrum was a

close friend of James' and that James and

Landrum were initially suspects in the case,

based on an interview with Landrum's employer.

Appellant's lover testified that Falcon had

against appellant. She also stated that she

had been with appellant the evening of the

murder, and this was corroborated by her

sister's testimony. There was additional

testimony that Falcon did not like appellant

and said he was going to have him killed.

The jury convicted appellant of first-degree

murder and armed robbery and recommended the

death penalty for the murder. The trial court

13

sentenced him to death in accordance with the

jury's recommendation, finding four

aggravating and no mitigating factors.

An evidentiary hearing was held on Melendez's second 3.850

Motion on May 23 - 24, 1996. At this hearing, the Office of the

Capital Collateral Representative, representing appellant,

presented ten witnesses, including Shelly Wilson, Deborah Ciotti,

Janice Fay Dawson, Sandra Kay James, John Berrien, Harun Shabazz,

Dwight Wells, Donna Harris, Roger A. Alcott and Dr. Richard J.

Ofshe, in support of their motion. The state presented FDLE agent

Thomas H. Roper and Detective Gary Glisson in opposition to the

motion.

Debra Ciotti, a convicted felon, drug user and prostitute,

testified that she and Vernon James were best friends; that Vernon

homosexual performances for Mr. Del, who was also a homosexual.

(PCR 90, 93-95) A few days before the murder Vernon James came to

school. He told her that he intended on taking the money and the

Del. (PCR 91) The evening before the murder he told her he was

going to the beauty school and he asked if she wanted to ride

along. He told her that she wouldn't have to get out; that she

could sit in the car. She declined. When Vernon drove off, she

14

was on Hobbs Lane in Auburndale about midways down the street. she

claimed that she saw him pick up two black males about a block and

a half from the beauty school. She saw the car pull into the

beauty school. Vernon James was driving Bobo's car (Harold

Landrum) at the time. (PCR 92) The two black males were both very

dark complected. The next morning when she came back from her

previous engagement she approached Vernon and she said, "Well did

you get what you went for?" In response, he showed her a wad of

money and a big bag of cocaine. (PCR 93) On cross examination

Ciotti admitted that in her affidavit she did not say anything

about observing Vernon and the two men pull up to the beauty shop.

(PCR 96) Ciotti testified that when she saw James the next

morning on Hobbs Road, she was just back from turning a trick the

night before and she had gone back up to Hobbs to buy some dope or

a little shack that people used for drugs and prostitution. (PCR

98) She could not say whether it was one of the two men he had

picked up the night before because of the distance between her and

the guys he picked up. (PCR 99) He did not mention any jewelry to

her because she told him she did not "want to know nothing." (PCR

101) She was pretty high at the time. (PCR 102) Ciotti said that

if Vernon had any jewelry from the robbery he would not have had it

by the next day; he would have already hocked it. (PCR 103)

Vernon James did not tell her that he had killed Mr. Del; Vernon

15

was not a violent person. (PCR 103) Ciotti then added for the

first time that she saw Vernon James go into the beauty shop. (PCR

104) She was never questioned and she was never approached about

this incident "until the attorney at that table" contacted her and

told her a man was sitting on death row for something he did not

do. She was available to be interviewed because she walked the

streets twenty-four hours a day. (PCR 104) Ciotti said she does

because he is not dark enough and she thinks Melendez is six inches

taller than the man she saw getting into the car. Although they

got in from the back and she never saw their faces, she knows just

she saw 13 years ago from a block away. (PCR 106-7)

Debra Ciotti testified that she asked Vernon James point blank

if he killed Mr. Del and he said he did not do it. He never told

her who did it, He also never told her how Mr. Del was killed.

(PCR 107) She doesn't know what time it was when Mr. James and the

two men he picked up pulled up to the beauty shop because rockheads

don't where watches; they hock them for a rock. She thinks it was

evening around dusk. (PCR 108-09) The only reason she saw Vernon

get out of the car and enter the building was because that was the

direction her trick was coming from. Just as Vernon went to go

through the door her trick pulled up and she got in the vehicle and

headed south on Newhope, away from the beauty school. (PCR 109)

16

Ciotti said that for all she knows Mr. Del could have been dead

when Vernon got there. (PCR 110) At the time of this event she

was living on the street and her permanent address was at her

mother's. (PCR 111) Everybody from the streets knew that she and

Vernon were like brother and sister, Mutt and Jeff. "Where he

went, I went. Where I went, he went." If people saw Vernon they

would see her too. If she wasn't there, she wasn't too far behind

or vice versa. (PCR 111)

Janice Fay Dawson, who had a daughter with Vernon James,

testified for Melendez that Vernon wrote to her while they were

both

13)

they

119)

that

incarcerated and he mentioned the death of Mr. Del. (PCR 112-

He never gave any details but he told her that he could get

or the electric chair for his part in the murder of Mr. Del.

114) They developed a

moved in together when

boyfriend-girlfriend relationship and

she got out of prison in 1985. (PCR

One day he gave her two rings saying, "Well, here's two rings

I been had for a few years, I've just been holding on to

them." He told her the rings came from Mr. Del or something to

that affect. (PCR 115) Dawson didn't question him because "you

just didn't question Vernon about nothing." She pawned them in

1986 in Bartow. (PCR 116) Dawson did not meet Vernon James until

December 1983, She did not know him in September 1983 when the

murder of Mr. Del happened. (PCR 117) He never told her he killed

Mr. Del. (PCR 120) He never told her how many people were

17

involved or who actually killed Mr. Del. (PCR 121) He did tell

her that he was there when it happened but he did not say who did

it. After she moved in with him it only got brought up one time.

And it was a very short conversation. At the time she was talking

to Vernon about it he was on drugs and she was drinking. (PCR 123)

Dawson testified that Vernon tended to exaggerate a lot; Vernon was

a con man. (PCR 124) Vernon could make people believe him when he

talked about things he really had nothing to do with. (PCR 125)

Vernon was good liar. (PCR 125)

Vernon James' sister, Sandra James, testified that she is

currently incarcerated at Florida Correctional Institution

Women. (PCR 126) She and Vernon were very close and she knew

the latter part of 1983 she asked Vernon about the death of Mr.

for

Mr.

In

Del

because there were rumors going around that he had killed Mr. Del.

James asked him point blank did he do it, he started crying and

said, "No. I didn't kill him. I set up the robbery and I was

there but I didn't kill him." (PCR 127) This conversation took

place a couple of months after Mr. Del's death. Sandra James

testified that she has been convicted of between ten and fifteen

felonies, (PCR 129) She also mentioned she was serving a 30 year

sentence. (PCR 129) James hung around with her brother a lot when

he wasn't with his girlfriend. (PCR 130) She doesn't know how

Mr. Del was killed other than what she read in the papers; that

18

Vernon didn't tell her anything. (PCR 131) He did not tell her

how many other people were involved. James had a fairly bad drug

problem at the time. (PCR 132) She knew they were looking for her

boyfriend Harold Landrum as a suspect but she did not know they

were looking for her brother. She doesn't know if the police

interviewed Vernon. (PCR 134) James knew Mr. Melendez's lawyer,

Roger Alcott, pretty well and Vernon knew his lawyer also. (PCR

135)

John Berrien, currently serving 30 year sentence in Santa Fe,

New Mexico, testified on direct that he was interviewed by

Detective Glisson and Sgt. Knapp of the Auburndale Police

Department in Auburndale. (PCR 135) They told him that someone

told them he was involved in the killing of Mr. Del and they

threatened him. They wanted him to give them a statement as to

what happened. They told him that he had planned the murder, that

he was going to get a cut of the money and that they knew that he

knew all about it. Berrien claimed that they told him not to end

that they would tell him what they wanted him to say, and if he

made a mistake they would stop the tape. Berrien claims that they

told him what time of day he was supposed to have been in

Auburndale and how he was supposed to have killed and "stuff like

that." (PCR 137) He testified that they told him to say that on

this certain day that ‘I dropped Juan Melendez off and I was

19

supposed to have robbed Mr. Del and I was supposed to be going to

get a cut of it and I came back and picked him up and took him back

to Lakeland and none of this was true." Berrien claims he was not

involved in the murder of Mr. Del and that he did not know about

the robbery or plan the robbery of Mr. Del. (PCR 138) As far as

his testimony at trial that he saw Juan Melendez give George two

officers. (PCR 139) He denied ever seeing Juan Melendez give

George Berrien two rings or a watch or a gun. After the officers

finished taping his statement they arrested him and charged him

convictions. After he gave the affidavit in this case Mr. Hardy

Pickard and another man from the State Attorney's office came to

speak to him but he refused to talk to them. (PCR 142) He later

entered a plea to being accessory after the fact. Berrien claims

that his lawyer, Dwight Wells, told him it would be the best thing

for him to accept that because he didn't know what would happen

down the line.

On cross examination, Berrien admitted that prior to the

interview with Knapp and Glisson in Auburndale where he claimed he

the Lakeland Police Department on March 7, 1984. At the interview

20

was Ed Hunley, Agent Tom Roper, and Mr. Glisson and Mr. Knapp.

that Melendez had asked him to take him to Auburndale to Mr. Del's

school in order to get his hair done. (PCR 144) He told the

officers that he dropped Melendez off at the school to get his hair

done along with his cousin, George. (PCR 145) Berrien recalled

telling the officers during the first interview that after he

dropped off Melendez he went to a friend's house to wait while he

this first interview on March 7th that he and Mr. Files went to the

Top Hat Lounge in Auburndale, drank some beer and waited about two

hours. (PCR 146) He picked Melendez and his cousin, George up

outside the building. Berrien did not recall telling the officers

that Melendez had a yellow-colored towel balled up in his hand. He

did not recall telling them that it looked like something might be

in the towel or that Melendez's hair had not been fixed. (PCR 147)

He did not recall telling the officers at the Lakeland Police

Department that night that Melendez usually carried a .38 caliber

snub-nosed pistol. He did not recall telling the officers that

when he took Melendez to Auburndale that he and Melendez were under

under the influence of cocaine. He remembered taking Melendez and

George to Auburndale. (PCR 148)

21

later for a second interview and then went to Auburndale Police

Department for a third interview. The third interview was where he

claims they threatened him and turned the recorder off and on.

(PCR 150)

Berrien remembered testifying at trial and on cross he

confirmed most of his trial testimony, except as to the type of

gun, the existence of the towel and the jewelry, what he did while

he waited and where he took them after he picked them up. (PCR

160-62, 163, 165-66, 167, 170-71) He now claims that he took them

to his house and not to Melendez's as he stated previously. (PCR

170) He admitted that nobody told him what to say, but claims he

said things because he ‘just thought it would be good." (PCR 174-

175) Berrien doesn't remember confirming his trial testimony to a

probation officer after the trial. (PCR 176-77)

Assistant capital collateral representative, Harum Shabazz,

were previously unavailable because they were part of the Vernon

James' murder case file. (PCR 185) Once they received the files,

pointed them to Deborah Ciotti. (PCR 188)

Dwight Wells testified that he represented John Berrien who

consistently denied involvement. He doesn't remember John Berrien

saying the police turned the tape on and off during his interview.

22

(PCR 191-192) Wells testified that he had previously represented

Vernon James. During his representation of John Berrien, and

before the Melendez trial, Wells visited Vernon James in jail.

(PCR 197) Vernon James confessed to Wells that he was involved in

the murder. (PCR 194) Wells doesn't know if he ever told anyone.

(PCR

John

195, 203)

On cross examination, Wells stated that he would have advised

Berrien that he had to testify truthfully. (PCR 196) Wells

claimed that he talked to Vernon James several times. (PCR 198)

His memory is that Vernon James alone killed Mr. Del. There was no

robbery or homosexual encounter. (PCR 201) Wells doesn't recall

if he shared the confession, which he did not believe to be

privileged, with Melendez's lawyer, Roger Alcott, or anyone else.

(PCR 204)

Donna Harris, a former CCR investigator, testified that she

had prepared Ch. 119 requests in 1988 to find John Berrien. (PCR

205-7) She interviewed Ginny Berrien and Ruby Collins to find John

Berrien. (PCR 209) She also requested records for information

about Vernon James' murder but the case was still open so was

unable to obtain it. (PCR 210-212)

Florida Department of Law Enforcement agent, Tom Roper,

testified for the state that a confidential informant led him to

John Berrien and that he interviewed John Berrien for the first

time on March 7, 1983. (PCR 213-4) Agent Roper denies that they

23

also denies that Berrien was told what to say. (PCR 216)

The state then played the first taped interview with Berrien

(PCR 218-243) where Berrien admitted taking Melendez and another

male to the beauty shop, picking them up later, noticing the towel

and the absence of a haircut. In a subsequent interview John

Berrien added that George Berrien was involved. (PCR 245)

On cross examination, Agent Roper explains that where there

are clicks on the tape, it signifies that the tape was stopped to

allow for thought gathering, not for discussions with Berrien.

(PCR 248-49) Agent Roper denies ever telling Berrien that Melendez

had made threats or providing him with any other information. (PCR

Gary Glisson, formerly with the Auburndale Police Department,

testified that he got a call from Roper about the confidential

informant. Glisson then contacted Knapp. (PCR 253) On March 15,

John Berrien was sent to a polygrapher. (PCR 256) Then Berrien

said he wanted to tell the truth. (PCR 257) There were no

threats; no promises. (PCR 258) During the March 15 interview the

tape was left on, there were no stops. (PCR 259) The tape was

played for the court over CCR's objection. (PCR 260-272)

Gary Glisson testified that John Knapp is now deceased. (PCR

272) After the March 15 interview John Berrien was arrested. Two

days later Berrien called and asked to speak with them at the jail

24

He then gave them a fourth statement. (PCR 273) For the first

time he said George Berrien was with them. (PCR 274)

Roger Alcott, Melendez's trial attorney, testified on behalf

of Melendez that he may have known the first taped interview was

turned on and off. (PCR 287-89) At trial, Melendez presented

inmate Roger Mims who testified that Vernon James had confessed to

him about the murder of Mr. Del. (PCR 290) On cross examination,

Alcott remembered that Melendez had an alibi defense and that he

argued to the jury that John Berrien was lying. (PCR 292) Alcott

(PCR 294) Wells may have told him about Vernon James; maybe not.

(PCR 295-96)

The court then inquired about defense witnesses. (PCR 297)

Alcott informed the court that Terry Barber said Vernon James was

there and that Roger Mims was a jailhouse snitch. (PCR 301)

Dr. Richard Ofshe testified as an expert for Melendez at the

motion to vacate hearing. (PCR 304) Dr. Ofshe's opinion was that

the confession was coerced. However, he admitted that he didn't

talk to John, the police or listen to all of the tapes. (PCR 333)

He admits he could have done a lot more work, but contends he had

limited time. (PCR 342) He assumed coerciveness off tape because

that's what John said. (PCR 338) Dr. Ofshe was sent one March 7

tape and two March 15 tapes. (PCR 339) The interviews were not

unusual, (PCR 340) As to the original interview on March 7, the

25

doctor did not have an opinion as to whether it was coerced. The

Berrien reconfirmed his repudiation of the defendant's involvement

during the previous day's hearing. (PCR 349) Accordingly, he

contends that yesterday's testimony was more reliable than prior

testimony. (PCR 350) Dr. Ofshe said the March 17 interview, after

John Berrien called police to come to the jail, was also coerced.

(PCR 351-52) When confronted with fact that at a deposition prior

to the original trial John Berrien repudiated testimony then

threatened. (PCR 355-56) He said he would believe John Berrien

more than police because his claim is supported by disputed facts.

(PCR 357)

At the close of the evidence the court asked for written

closing arguments. After receiving same, the court entered an

findings:

In support of the newly discovered

evidence claim the defendant called five

witnesses: Deborah Ciotti, Janice Dawson,

Sandra Kay James, John Berrien and Dwight

Wells. They all claimed that Vernon James had

made incriminating statements to them about

the murder. Four of the five were not

credible witnesses and their testimony, either

individually or cumulatively, falls short of

the standard required to grant a retrail.[sicl

Deborah Ciotti was, at the time of the murder,

a street prostitute and drug addict. Her best

26

constantly together. Everyone who knew Vernon

James knew Deborah Ciotti, which of course

raises the question of how she can be

considered newly discovered. Regardless, she

now says James told her a few days before the

murder that he was going to rob the beauty

and proceed in the direction of the murder

scene. After she read about the murder she

asked James if he did it and he responded by

showing her some money and drugs. He never

told her he killed the victim. Because she

didn't wish to get involved, she purposely

avoided further discussion about the murder

with James. Her testimony fails both the

second and third prong of the Jones test.

Janice Dawson met Vernon James at a first

appearance hearing in the Polk County jail.

Previously both had been charged with

unrelated crimes. Their relationship

continued while both of them spent time in

separate Florida prison facilities and they

lived together for a time after both got out

of prison. On many occasions James told her

that he had been involved in the murder.

Indeed, he used to brag about it to the other

people in the neighborhood, But he never said

that he murdered the victim nor did he ever

say who had committed the murder. she

described James as a con man, a liar, and a

person adept at making people believe what he

wanted them to believe. Her testimony fails

the third prong of the Jones test.

Sandra Kay James is Vernon James' sister who

is presently serving a thirty year prison

sentence. At the time of the murder, she was

the girlfriend of Landrum, one of the initial

suspects. She also knew Roger Alcott,

Melendez' trial attorney. During the

pertinent time period she was addicted to

drugs. She claims her brother told her that

he set up the robbery of the victim and was

present when he was murdered but did not

actually commit the murder. She admits that

when the prosecutor attempted to speak with

27

At the trial, John Berrien testified against

Melendez after securing for himself a

negotiated plea agreement. Attacking his

credibility was a major part of the Melendez

defense. His numerous and frequently

contradictory statements were brought to the

attention of the jury. Yet the j U~Y

apparently believed him. He now claims that

parts of his testimony were false. He is

vague about which parts of his trial testimony

he is recanting. Some of it he claims he

simply made up for no particular reason.

Other parts were the result of police

intimidation and coercion. The remainder, he

stated, was true. This inmate of the New

Mexico prison system was completely

unbelievable. His transparent motive for

recanting is to help a former partner in a

robbery/murder plot. His testimony fails the

third prong of the Jones test.

Dwight Wells is a criminal defense attorney

who, at the time of the trial, was an

assistant public defender appointed by the

court to represent Melendez' co-defendant,

John Barrien. Sometime during his

representation of Barrien, he received a call

from Vernon James asking him to come to the

the jail to visit his friend, Vernon James.

He did not represent James and did not

consider any of these conversations

privileged. During these visits, Wells claims

that James confessed to the murder for which

Melendez and Barrien were charged. Wells'

memory of these confessions is extremely

sketchy. He made no notes and did not tape

any of the confessions. He is not sure of any

of the dates when these confessions were given

but does remember that they occurred during

the time he was representing Barrien. He

doesn't recall if he ever mentioned these

confessions to Roger Alcott, Melendez'

28

her concerning the affidavit she filed in this

matter, she refused to talk to him. Her

testimony fails both the second and third

prong of the Jones test.

attorney. He doesn't remember if he contacted

the State Attorney to inform him that innocent

men, including his client, had been indicted.

confessions to his client but is not sure. In

any case, he did proceed to plead his client

to certain lesser charges in exchange for his

client's testimony against Melendez. I'm not

sure what to make of Mr. Wells' testimony. It

to have his client, Barrien, testify against

Melendez in a death penalty case if he

believed that both Barrien and Melendez were

innocent. Yet now, twelve years after the

conviction, he claims that Vernon James

confessed that he and the victim were

homosexual lovers who had a fight about

physical evidence of stabbing and shooting and

Suffice to say that this Mr. Wells' testimony

fails both the second and third prong of the

t e s t . Jones

In summary, the newly discovered evidence

claim rests on the testimony of three

convicted felons who say Vernon James made

incriminating statements about the murder, the

partial recanting of a co-defendant's

Vernon James' several confessions. The

The jury rejected that defense and none of the

above would likely have been credible enough

to change that verdict in my opinion.

* * *

In his affidavit attached to the motion

to vacate, John Berrien swears that "Back in

April, 1984" he was threatened and coerced by

Auburndale police officers Glisson and Knapp

to make statements inculpating Melendez in the

murder. The officers had a written outline of

the statement they wanted Berrien to make and

they coached him through his statement with

frequent references to the outline. They had

a tape recorder but they turned it on only

after Berrien had mastered a portion of their

statement. While the police were coaching and

29

threatening him, they turned it off. They

threatened his life if he did not say what

they told him to say so ‘I just repeated what

they told me to say." Oddly, he concludes his

affidavit with this: "If Juan Melendez' trial

attorney had asked me about the facts stated

above, I would have told him and would have

testified about it during Juan Melendez'

tria1.l

The major problem with this so-called

Brady violation is that in order to sustain it

one has to believe John Berrien. I do not

believe John Berrien. Berrien had at least

three interviews with law enforcement

regarding this murder. The first occurred on

March 7, 1984 at the Lakeland Police

Department. The interview was conducted by

Florida Department of Law Enforcement Agent

was a Lakeland Police detective. The second

occurred March 15, 1984 at the Auburndale

Police Department. Presumably, this is the

interview Berrien complains of in his

affidavit and testimony. He was arrested

after this interview and taken to the Polk

County Jail. Two days later Berrien called

Det. Glisson and asked him to come to the jail

because Berrien had more to say, Glisson, and

eventually Roper, took a third confession at

the jail. While the three statements differ

in detail, they are basically the same. It is

difficult to understand how Berrien's

allegedly coerced statement on March 15th

vitiates the statement he made on March 7th.

Moreover, the police obtained the March 17th

statement at the behest of Berrien himself.

It seems unlikely that Berrien would summon

his tormentors from Auburndale only to subject

himself to further threats and coercion. One

may certainly question Berrien's motives for

giving these statements, but there is no

credible evidence of police misconduct.

(R 425-428)

30

SUMMARY OFTHEARC,TTMSEf

Appellant's first claim is that newly discovered evidence

establishes his innocence. This evidence not qualify as newly

discovered because it was already known and/or it could have been

obtained with the exercise of reasonable diligence. Further, it

is cumulative to evidence that was actually presented at trial. As

the jury has already heard this evidence and, nevertheless, found

Melendez guilty as charged, there is little to support a claim that

there is a ltprobabilitytl that it would produce an acquittal on

retrial. This is especially true in light of the fact that none of

the witnesses produced at the evidentiary hearing could testify

that Melendez was not guilty of the murder; the witnesses only

testified that Vernon James said he was responsible for setting up

the murder and that he was present for the murder.

In his previous Rule 3.850 motion, Melendez had a full and

fair hearing on his claims of ineffective assistance of trial

counsel and on an alleged Brady violation. As appellant has failed

to show why this claim should not be barred as untimely and

successive, it is the state's position that he is not entitled to

relief. Assuming, arsuendo, Melendez can overcome the procedural

bars, he is not entitled to relief on the merits of either the

Bradv or the ineffective assistance of counsel claim.

31

Melendez's first claim is that he has newly discovered

evidence that establishes his innocence of the instant murder. He

claims that previously unknown or unavailable witnesses now

establish that Vernon James, not appellant, is guilty of the murder

of Mr. Del. An evidentiary hearing was held on this claim by the

court below. After hearing all the evidence and argument on the

motion, the circuit court rejected Melendez's claim of newly

discovered evidence, finding that the evidence did not satisfy the

(Fla. 1991). It is the state's position that this claim was

properly denied by the trial court.

In -es v. State, 591 So.2d. 911, 915 (Fla. 1991), this

Court set forth the standard for reviewing claims of newly

discovered evidence. To establish a newly discovered evidence

claim, a defendant must prove the following:

counsel at the time of trial.

known them by the use of due diligence.

acquittal on retrial.

Appellant/s claim of newly discovered evidence rests on his

claim that he now has evidence that Vernon James committed the

murder of the victim in the instant case, Mr. Del. This evidence

consists of friends of the now deceased Vernon James who claim that

James told them he was responsible for the crime, as well as

testimony from state witness,

law enforcement was coerced.

As the court below noted

John Berrien, that his statement to

in his Order denying the motion to

vacate ‘in considering the newly discovered evidence claim it is

important to keep in mind the defense which was actually presented

to the jury." (PCR 425) A review of the initial trial transcript

shows that defense counsel was aware that Vernon James had

he actually called Vernon James as a witness for the defense.

Vernon James did not testify at trial because after being read his

rights and given a public defender to confer with he refused to

testify on the grounds that his testimony may tend to incriminate

him. (R 595) Subsequently, defense counsel represented to the

Court that James had again agreed to testify, but that "Mr. James'

fear was that there was a man who was going to testify against him

and say he confessed to committing the actual cutting itself, and

as that person was not going to be testifying against him and

creating evidence for the State against him, he'd be willing to

tell about what he knew about the crime, but he was not there. If

33

this witness does not testify against Mr. James, Mr. James is going

to be testifying for us tomorrow." (R 625-26)

Defense counsel apparently decided against putting Vernon

James on the stand because ‘the man who was going to testify

against him,' inmate Roger Mims, testified the next day for the

Melendez was not responsible for the death of Mr. Del, that he

(James) and his partners were the ones who had something to do with

it. James told him that "one of the dudes shot him in the head and

one shot him in the chest and he fell down, and he (James) took the

knife and cut him across the throat." (R 635)

Accordingly, not only does this evidence not qualify as newly

discovered because it was already known and/or it could have been

obtained with the exercise of reasonable diligence, it is

cumulative to evidence that was actually presented at trial. As

the jury has already heard this evidence and, nevertheless, found

Melendez guilty as charged, there is little to support a claim that

there is a "probabilitytt that it would produce an acquittal on

James actually committed the murder. Rather, the evidence showed

Del. Likewise, none of the witnesses produced at the evidentiary

hearing could testify that Melendez was not guilty of the murder;

34

the witnesses only testified that James said he was responsible for

setting up the murder and that he was present for the murder.

In support of the newly discovered evidence claim appellant

called five witnesses: Deborah Ciotti, Janice Dawson, Sandra Kay

James, John Berrien and Dwight Wells. They all claimed that Vernon

James had made incriminating statements to them about the murder.

The court below specifically found that four of the five were not

credible witnesses and their testimony, either individually or

cumulatively, falls short of the standard required to grant a

retrial. (PCR 426)

Deborah Ciotti, an admitted street prostitute and drug addict

testified that she was Vernon James' best friend and they were

constantly together. (PCR 91, 97) She described Vernon James as

like a brother, "Where he went, I went. Where 1 went, he went."

therefore fails the second prong of Jones. She could have been

discovered with due diligence. Her testimony also fails the third

prong, that it would have probably produced an acquittal. Ciotti

facts not previously disclosed and she is an admitted

she adds new

felon, drug

abuser and street prostitute. Further, &jle her testjmonv ma

&t does not exculpate Melendez. Vernon James never told her he

35

narcotics, but nothing was mentioned about the stolen jewelry. She

during, or after Vernon James' alleged visit. In addition, she

does not know how many people were involved in the homicide. She

claimed that "everyone who knew Vernon James knew Deborah Ciotti,"

which of course raises the question of how she can be considered

newly discovered. Regardless, she now says James told her a few

days before the murder that he was going to rob the beauty shop.

Later she saw James meet some other men and proceed in the

direction of the murder scene. After she read about the murder she

asked James if he did it and he responded by showing her some money

and drugs. He never told her he killed the victim. Because she

didn't wish to get involved, she purposely avoided further

discussion about the murder with James. As the court below found,

her testimony fails both the second and third prong of the Jonex

test. (PCR 426)

Janice Dawson's testimony likewise lacked credibility and did

not exculpate Melendez. Dawson testified that she met Vernon James

committed the murder or how it was done'. She described Mr. James

he is telling the truth. The court below found that her testimony

failed prong 3, i.e. that the evidence would probably produce an

acquittal on retrial.

36

Sandra Kay James is Vernon James' sister. She was known to

Roger Alcott. Her testimony fails prong 2 in that she could have

been discovered with due diligence. She also fails prong 3 in that

her testimony does not exculpate Melendez. Vernon James told her

he was there but did not commit the murder. He did not tell her

who did it, how it was done, how many people were involved, or what

was taken. Sandra Kay James is currently serving a 30 year prison

sentence. (PCR 375)

Taken together, all three (3) of these individuals are

convicted felons with little or no credibility and all were known

or could have been discovered at the time of trial. While their

testimony incriminates Vernon James in some illegal activity, it

does not even address appellant's culpability. They do not know

whether Melendez was involved. This type of testimony would not

"probably produce an acquittal on retrial." Even if Vernon James

was somehow involved, that does not negate Melendez's participation

in the murder; they are not mutually exclusive. The state has

never maintained that Melendez was the sole participant in this

crime.

In fact, at Melendez's trial, the state presented the

testimony of confidential informant, David Luna Falcon. Falcon

testified that Melendez told him that the black male that was with

him had -act in the school who set up the alleged sexual

encounter. Ciotti testified at the evidentiary hearing that she

37

saw James pick up two black men on the same block and at

approximately the same time that Berrien said he dropped off

Melendez and George Berrien.

As previously noted, this evidence does not rise to the level

required in Jones because it is cumulative to what Mr. Alcott

produced at trial. His trial defense involved trying to lay the

blame on Vernon James and claiming an alibi for his client, Any

evidence concerning Vernon James is not newly discovered as counsel

was aware of the defense and with due diligence could have found

all of these witnesses.

Regarding the testimony of Dwight Wells, neither Mr. Wells or

Mr. Alcott seem to recall if Mr. Wells ever relayed his information

concerning Vernon James. If he did, it is not newly discovered.

If he didn't, it fails the second prong of m because it

certainly could have been discovered with due diligence by Mr.

Alcott. Wells claims he would have told him if he asked. It is

inconceivable that two attorneys representing codefendants would

not have discussed such evidence. This argument is especially

troublesome considering Wells obviously knew that this was the

defense presented at Melendez's trial. As the court below stated

with regard to Mr. Wells claim that James had confessed to him:

testimony. It is inconceivable that he would

strike a deal to have his client, Barrien,

testify against Melendez in a death penalty

case if he believed that both Barrien and

Melendez were innocent. Yet now, twelve years

38

after the conviction, he claims that Vernon

James confessed that he and the victim were

aggressive sexual advances which resulted in

James killing the victim. Never mind that the

physical evidence of stabbing and shooting and

Suffice to say that this Mr, Wells' testimony

fails both the second and third prong of the

t e s t . Jones

(PCR 427)

Regardless, none of these witnesses exculpate Mr. Melendez or

not only does this evidence not qualify as newly discovered because

it could have been discovered with due diligence; when considered

in light of the evidence that was presented at the case, it is

cumulative and insubstantial and, therefore, fails the third prong

of Jones. Accordingly, the trial court properly denied the claim

of newly discovered evidence.

39

SUE II

The basis of this claim is appellant's contention that

Berrien's testimony was a result of threats on Berrien's life made

by law enforcement officers. Appellant contends that this claim

has never been presented before because of State misconduct and/or

trial counsel's ineffectiveness.

Melendez is not entitled to relief on either claim. Melendez

has already had a full and fair hearing on his previous Rule 3.850

motion, including his claim of ineffectiveness of trial counsel and

an alleged violation of Bradv v. MarvIa, 373 U.S. 83, 83 S.Ct.

S.Ct. 2879, 115 L.Ed.2d 1045 (1991); Squjres v. State, 565 So.2d

318 (Fla. 1990). Similarly, unless a defendant can establish that

the basis of his Brady claim could not have been discovered, the

claim is also barred in a successive motion. Medina v. State, 690

40

So.2d 1241 (Fla. 1997) (Defendant's Brady claim is barred where the

information upon which it is based is not newly discovered)

Moreover, as in Jones, Melendez's current motion was filed beyond

the two year time limit of Florida Rule of Criminal Procedure

3.850. Snasiano v. State, 570 So.2d 289 (Fla. 1990); Jljghtbourne

v. State, 549 So.2d 1364 (Fla. 1989). As appellant has failed to

show why this claim should not be barred as untimely and

successive, it is the state's position that he is not entitled to

relief.

Assuming, arauendo, Melendez can overcome the procedural bars,

he is not entitled to relief on the merits of either the Frady or

the ineffective assistance of counsel claim.

In order to establish a Bradv violation, a defendant must

establish the following:

favorable to the defendant (including

impeachment evidence);

(2) that the defendant does not possess the

evidence nor could he obtain it himself with

any reasonable diligence;

(3) that the prosecution suppressed the

favorable evidence; and

(4) that had the evidence been disclosed to

the defense, a reasonable probability exists

that the outcome of the proceedings would have

been different.

41

Hedgwood v. State, 575 So.2d 170, 172 (Fla. 19911, quoting

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989), cert.

(citations omitted).

A review of Melendez's allegation that John Berrien that he

was threatened and coerced by law enforcement into making his

statements in the context of the 4-prong Brady test shows that

Melendez is not entitled to relief,

Recently, this Court, in Raliburton v. Sinaletary, 691 So.2d

466 (Fla. 1997), rejected Haliburton's claim that the state

suppressed certain exculpatory evidence in violation of Brady v,

wand, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Quoting, Cruse v. State, 588 So.2d 983 (Fla. 1991), this Court in

Haliburton noted that "not all evidence in the possession of the

State must be disclosed to the defense under Brady. Evidence is

only required to be disclosed if it is material and exculpatory.

that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different. A 'reasonable

probability' is a probability sufficient to undermine confidence in

the outcome. In making this determination, the evidence must be

considered in the context of the entire record. Id. at 987

42

{quoting United States v. Basley, 473 U.S. 667, 682, 105 S.Ct.

3375, 3383, 87 L.Ed.2d 481 (1985))." ad. at 470. Based on the

foregoing, this Court found that Haliburton had not established a

Bradv violation where the record showed that all documentation had

been turned over, that no evidence was presented to establish that

alleged documents ever existed and that other evidence was equally

accessible to defendant.

In the instant case, the only evidence raised in support of

the allegation that the government possessed evidence favorable to

Melendez is Berrien's uncorroborated claim that his last taped

statement was coerced. This claim was refuted by Detective Glisson

and FDLE Agent Roper, the taped statements, Berrien's pretrial

was rejected by the court foregoing, Berrien's claim of coercion

below. Specifically, the court stated:

The major problem with this so-called Brady . . violation is that in order to sustain it one

has to believe John Berrien. I do not believe

John Berrien. Berrien had at least three

interviews with law enforcement regarding this

murder. The first occurred on March 7, 1984

at the Lakeland Police Department. The

interview was conducted by Florida Department

of Law Enforcement Agent Tom Roper. Glisson

detective. The second occurred March 15, 1984

at the Auburndale Police Department.

Presumably, this is the interview Berrien

complains of in his affidavit and testimony.

He was arrested after this interview and taken

to the Polk County Jail. Two days later

43

Berrien called Det. Glisson and asked him to

come to the jail because Berrien had more to

say. Glisson, and eventually Roper, took a

third confession at the jail. While the three

statements differ in detail, they are

basically the same. It is difficult to

understand how Berrien's allegedly coerced

statement on March 15th vitiates the statement

he made on March 7th. Moreover, the police

obtained the March 17th statement at the

that Berrien would summon his tormentors from

Auburndale only to subject himself to further

threats and coercion. One may certainly

question Berrien's motives for giving these

statements, but there is no credible evidence

of police misconduct. None of the four

elements of a Brady violation were proved.

(PCR 425-28) (emphasis added)

to the trial judge who can hear and see the witnesses and make

determinations based on credibility. Green v. State, 538 So.2d 647

(Fla. 1991). This trial judge had all of the parties and the

evidence before him to make an accurate factual finding. The trial

court 's factual finding is entitled to a presumption of

correctness, Henrv v. State, 586 So.2d 1033 (Fla. 1991); Medina v.

m, 466 so.2d 1046 (Fla. 1985); Johnson v. State, 438 So-2d 774

(Fla.), Cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724

This Court has held that the clearly erroneous standard applies

44

documents. Thornsson v. State, 548 So.2d 198, 204, n. 5 (Fla.

1989). Acting as a fact finder, the court below rejected Berrien's

claim of coercion. As appellant has failed to establish that the

alleged coercion ever happened, he has also failed to establish

that the state did possessed any evidence favorable to Melendez

that was withheld. Accordingly, appellant has failed to establish

There is no Bradv violation where alleged exculpatory evidence

is available to the defense and the prosecution. Roberts v. State,

568 So.2d 1255 (1990); James v. State, 453 So.2d 786 (Fla. 1984).

John Berrien testified at trial and was deposed by defense counsel.

evidentiary hearing, that his statements to law enforcement were

false. Berrien then, as he did at the evidentiary hearing,

proceeded to reconfirm most of the evidence provided in his

original statement to law enforcement. As Berrien's claim that

most of his statements to law enforcement was false was equally

accessible to the defense at the time of trial, it does not qualify

l The availability of Berrien's statement at the time of trial,

operates as a procedural bar to this latest claim.

45

As the court below found that Berrien's testimony was not

state to suppress.

There is no reasonable probability that "had the evidence been

disclosed to the defense, the result of the proceeding would have

citing Medina v. State, 573 So.2d 293 (Fla. 1990). Berrien's

statements were thoroughly challenged at trial and in Appellant's

initial post-conviction proceeding. Even if Berrien's claim of

coercion was presented to impeach his testimony at trial, the

addition of this clearly unsupported claim does not lead one to

conclude that the outcome of the proceeding would have been

different.

none of those statements were material:

David Files' home, then to Food World. Berrien now

claims he simply made up that - it was not a result of

police threats, Regardless, it is not relevant to the

question of appellant's guilt.

c) His testimony that Melendez came out of Mr. Del's with a

towel in his hand with something apparently wrapped up in

it. This statement was also made during the first

statement he gave on March 7, 1984 - prior to any alleged

coercion. Additionally, the absence of the towel does

not exculpate Melendez and, therefore, is not material,

d) Berrien's testimony that he took appellant to his home

after leaving Mr. Dells. Berrien now claims this was not

the result of police coercion, but was simply made up by

him. Again, it is not relevant or material to the

question of appellant's guilt.

e) His testimony that George Berrien gave appellant some

jewelry and a gun to take to Delaware. Berrien claims

now that he testified to this because he assumed that is

what the police wanted him to say. He did not claim it

was a result of any police coercion. As such it does not

qualify as withheld evidence.

47

deposition after he first claimed his statements were false, stated

that the remainder of his testimony, including taking Melendez and

George Berrien to Mr. Del's, was true.

Given the foregoing, it is the state's position that Melendez

of the motion should therefore be affirmed.

B. Ineffective Assist-e of Counsel

In Haliburton v. Sinsletary, 691 So.2d 466 (Fla. 19971, this

Court rejected Haliburton's claim that either the state suppressed

certain exculpatory evidence in violation of pradv v. Marvland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or his counsel was

ineffective under mckland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), in failing to investigate, prepare,

and present the evidence. Haliburton claimed that the jury did not

hear certain impeachment evidence. In rejecting this claim, this

Court noted that "Haliburton failed to demonstrate that counsel's

performance was deficient and that there is a reasonable

probability that the outcome of the proceeding would have been

different absent the deficient performance. m, 466 U.S.

at 687, 104 S.Ct. at 2064; Bertolotti v. State, 534 So.2d 386, 390

(Fla. 1988). Thus, where defense counsel was aware of the proposed

impeachment testimony, but for tactical reasons chose not to use it

was not t'so patently unreasonable that no competent attorney would

48

have chosen it," JJalmes v. Wainwriaht, 725 F.2d 1511, 1521 (11th

Cir . 1984) (quoting &&ms v. Wwcrht, 709 F.2d 1443, 1445 (11th

Cir. 1983)), nor can we say that the outcome of the proceeding

would have been different if counsel had presented her."

In the instant case, not only is this claim barred as it was

raised and rejected in the prior collateral proceeding, appellant

has likewise failed to establish that counsel's failure to discover

and present the testimony present counsel now urges, constitutes

deficient performance and would have changed the outcome of the

proceeding.

49

CONCTIUSTON

Based on the foregoing arguments and authorities, the Order

Denying Motion to Vacate Judgment and Sentence issued by the lower

court should be affirmed and Appel lant's request for relief denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

I

CANDANCE M. SABELLA

Assistant Attorney General

Florida Bar ID#: 0445071

2002 N. Lois Avenue, Suite 700

Westwood Center

Tampa, Florida 33607

(813) 873-4739

COUNSEL FOR APPELLEE

FICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished by U.S. Regular Mail to Gail E. Anderson,

Assistant CCR, Office of the Capital Collateral Representative,

Post Office Drawer 5498, Tallahassee, Florida 32314-5498, this

COUNSEL FOR APPELLEE

50

498 So.2d 1258, Melendez v. State, (Fla. 1986)

498 So.2d 1258, 11 Fla. L. W e e k . 639

Supreme Court of Florida.

D e c . 11, 1986.

Defendant was convicted of first-degree murder and

armed robbery in the Circuit Court, Polk County,

Edward F. Threadgill, Jr., J., by jury verdict.

Defendant appealed. The Supreme Court, Shaw, J.,

held that: (1) defendant’s due process rights were not

violated by failure of police investigators to collect and

preserve certain physical evidence; (2) defendant was

not entitled to mistrial on grounds that two

nonsubpoenaed defense witnesses refused to appear to

testily; (3) record supported finding of aggravating

factors for purposes of imposition of death penalty; and

(4) fact that defendant’s conviction could have rested

upon felony-murder did not preclude conviction for

first-degree murder,

Affirmed.

Barkett, J., concurred specially and filed opinion

Adkins, J., concurred in conviction but concurred in

result only with the sentence.

1 t CONSTITUTIONAL LAW -268(5)

92 ----

92XII Due Process of Law

92k256 Criminal Prosecutions

92k268 Trial in General

92k268(2) Particular Cases and Problems

92k268(5) Disclosure and discovery; notice of

defense.

Fla. 1986.

Defendant’s due process rights were not violated by

failure of police investigators to collect and preserve

certain physical evidence, which might have been

beneticial to defendant’s case, where police did not

make conscious effort to suppress exculpatory evidence

and where there was no showing that evidence rejected

by the investigators possessed apparent exculpatory

value. U.S.C.A. ConstAmends. 5.14.

2. CRIMINAL LAW -867

110 ----

1lOXX Trial

1 lOXX(J) Issues Relating to Jury Trial

11 Ok867 Discharge of jury before verdict.

Fla. 1986.

Trial court was not required to grant motion for

mistrial, based on failure of two nonsubpoenaed

defense witnesses to appear to testify.

203VII Evidence

203VQ’E) Weight and Sufficiency

203k25 1 Degree of Murder

203k253 First Degree

203k253(1) In general.

[See headnote text below]

3. ROBBERY -24.1(3)

342k24 Weight and Sticiency of Evidence

342k24.1(2) Degree or Classification of Offense

342k24.1(3) First degree; armed robbery.

Fla. 1986.

Competent substantial evidence supported jury’s

determination that defendant was guilty of first-degree

murder and armed robbery, even though conflicting

evidence existed.

4. CRIMINAL LAW 0 1208.1(5)

110 ----

1 lOXXV1 Punishment of Crime

11 Ok1 208 Extent of Punishment in General

1 lOk1208.1 In General

1 lOk1208.1(4) Death Sentence

llOk1208.1(5) Aggravating or mitigating

circumstances.

Fla. 1986.

For purposes of imposition of death penalty,

defendant’s prior robbery conviction could be used to

support aggravating factor of previous conviction for

felony involving use or threat of violence to person,

even though robbery conviction was ten years old.

West’s F.&A. Sec. 921.141(S)(b).

5. HOMICIDE -357(7)

203k355 Death Penalty

203k357 Considerations Determining Propriety

of Death Sentence

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

498 So.2d 1258, Melendez v. State, (Fla. 1986)

Formerly 203k354

Fla. 1986.

For purposes of imposition of death penalty,

defendant was engaged in the commission of robbery

existed, w h e r e competent substantial evidence

supported jury’s determination that defendant

committed robbery and first-degree murder. West’s

F.S.A. Sec. 921.141(5)(d).

6. HOMICIDE -3 11

203 ----

203VIII Trial

203VIII(C) Instructions

203k311 Punishment.

Fla. 1986.

It was not reversible error for trial court to substitute

"wicked, evil" for "heinous" in court’s instruction on

aggravating factor, for purposes of imposition of death

penalty, of murder being heinous, atrocious and cruel.

West’s F.S.A. Sec. 921,141(5)(h).

7. HOMICIDE -357(11)

203 ----

203x1 Sentence and Punishment

203k355 Death Penalty

203k357 Considerations Determining Propriety

of Death Sentence

203k357(11) Depravity, atrocity, heinousness,

etc.; cruelty or torture.

Formerly 203k354

Fla. 1986.

Aggravating factor of murder being heinous,

atrocious and cruel, for purposes of imposition of death

penalty, was supported by the record, even if defendant

only fired gunshot to victim’s head and his accomplice

slit victim’s throat; defendant ignored victim’s picas for

mercy, and victim had knowledge of his impending

doom. West’sF.S.A. Sec. 921,141(5)(h).

8. HOMICIDE &=357(11)

203 ----

203XI Sentence and Punishment

203k355 Death Penalty

203k357 Considerations Determining Propriety

of Death Sentence

203k3S7(11) Depravity, atrocity, heinousness,

etc.; cruelty or torture.

Formerly 203k354

Fla. 1986.

Aggravating factor of murder being cold, calculated

and premeditated, for purposes of imposition of death

penalty, was supported by the record, where defendant

planned crime well in advance, where defendant went

to victim’s beauty school for purpose of getting victim’s

jewelry and money, and where defendant knew he

would have to encounter victim to take jewelry from

him. West’s F.S.A. Sec. 921,141(5)(i).

9. HOMICIDE -253(3)

203 ----

203VII Evidence

203VII(E) Weight and Sufficiency

203k25 1 Degree of Murder

203k253 First Degree

203k253(3) Circumstances of cool blood,

deliberation, and premeditation.

Fla. 1986.

Fact that defendant’s tirst-degree murder conviction

could have rested upon felony-murder, did not preclude

conviction for first-degree murder; evidence supported

premeditated murder.

Jim Smith, Atty. Gem, and Candance M. Sunderland,

Asst. Atty. Gen., Tampa, for appellee.

SHAW, Justice.

Appellant, Juan Roberto Melendez, was found guilty

as charged of first-degree murder and armed robbev.

The trial court imposed the death sentence for the

murder and a life sentence for the robbery. Melendez

now appeals his convictions and sentences. W e h a v e

jurisdiction pursuant to article V, section 3(b)(l),

Florida Constitution, and we affirm.

Police responded to a call from the victim’s sister on

the evening of September 13, 1983, and found the body

of Delbert Baker on the floor in a back room of his

beauty school in Auburndale. His throat had been

slashed, and he had been shot in the head and

shoulders. No jewelry was found on his body.

John Berrien testified at trial that there was an

occasion around the time of September 12, 1983, on a

rainy day that he, his cousin George Berrien, and

appellant were together and appellant asked him to

drive him to Aubumdale so he could get his hair done

and pick up some money. The three of them left at

about 4 p.m. Appellant had a bulge in the back of his

pants that John suspected was a gun. George and

appellant said to pick them up from Mr. Del’s, the

beauty school, in about one and one-half to two hours,

and he did so. The next day George asked John to

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498 So.2d 1258, Melendez v. State, (Fla. 1986)

drive him to the train station so that he could go to

Delaware to see his children. Appellant went with

them to the station and gave George two rings, a watch

and a gun to sell in Wilmington. John had seen

appellant with watches and rings before, but could not

say if they were the same ones. The watch looked like

one appellant previously had tried to sell him. Amtrak

records reflecting that a Mr. G. Berrien made a

reservation on September 14, 1983, to go horn

Lakeland to Wilmington, Delaware, and a ticket lift

indicating that the train was actually boarded were

introduced into evidence. There was testimony that the

victim had worn his missing wrist watch, gold bracelet

and four diamond rings for years and that he had been

wearing them the day of the murder. A bank bag

containing $50 in petty cash was missing horn the

victim’s desk drawer.

David Falcon, a convicted felon, testified that several

months after the murder appellant told him of having

participated in the crimes. According to Falcon’s

rendition, appellant and another had made an

appointment with the victim because he was supposed

to have money and jewelry. The driver, John, stayed in

the car. Appellant and his accomplice went inside, and

the latter cut the victims throat. The victim begged

them to take him to a hospital, but appellant said that

that could not be done because the victim would tell the

police. Appellant then shot him in the head. T h e

perpetrators cleaned up any fingerprints and took

jewelry and money.

*1260 George Berrien testified for the defense and

denied riding with appellant in the car to Auburndale

and said he had seen him only once before at his cousin

Johns house. Appellant testified and denied

culpability. A prisoner named Roger Mims testified

that his cellmate, Vernon James, told him that he, his

partner and a homosexual killed Baker. There was

police testimony that Harold Landrum was a close

friend of James’s and that James and Landrum were

initially suspects in the case, but that Landrum was

eliminated as a suspect based on an interview with

Landrum’s employer

Appellant’s lover testified that Falcon had told her he

was going to testify falsely against appellant. She also

stated that she had been with appellant the evening of

the murder, and this was corroborated by her sister’s

testimony. There was additional testimony that Falcon

did not like appellant and said he was going to have

him killed.

The jury convicted appellant of first-degree murder

Page 3

and armed robbery and recommended the death penalty

for the murder. The trial court sentenced him to death

in accordance with the jury’s recommendation, finding

four aggravating and no mitigating factors.

[I] Appellant argues that he was denied due process

because the police investigators failed to collect and

preserve certain physical evidence that might have

been beneficial to him: a blood sample from the scene,

a stain on the victim’s car seat, clothes or shoes of

Vernon James, shoes of Harold Landrum, shoes found

beside the body, David Falcon’s gun, and a hunting

knife found in the victim’s desk drawer. This claim,

relating to the opportunity to present a defense,

involves "what might loosely be called the area of

constitutionally guaranteed access to evidence." United

States v. Valenzuela-Bemal, 458 U.S. 858, 867, 102

S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). "Taken

together, this group of constitutional privileges delivers

exculpatory evidence into the hands of the accused,

thereby protecting the innocent from erroneous

conviction and ensuring the integrity of our criminal

justice system." California v. Trombetta, 467 U.S. 479,

485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984).

The concern is that the accused have access to

exculpatory evidence, not all possible pieces of

evidence that the police have rejected as worthless.

The duty on the state is "limited to evidence that might

be expected to play a significant role in the suspect’s

defense. " Id. at 488, 104 S.Ct. at 2534 (footnote

omitted). The evidence must "possess an exculpatory

value that was apparent before the evidence was

destroyed." Id. at 489, 104 S.Ct. at 2534. There is "no

constitutional requirement that the prosecution make a

complete and detailed accounting to the defense of all

police investigatory work on a case." Moore v. Illinois,

408 U.S. 786, 795, 92 SCt. 2562, 2568, 33 L.Ed.2d

706 (1972). Most of the alleged negligent

nonpreservation of evidence in this case occurred prior

to the time appellant became a suspect. We find

neither evidence of a conscious effort by the police to

suppress exculpatory evidence in this case nor a

showing that rejected evidence possessed an apparent

exculpatory value, We a&m this point relating to the

collection and preservation of evidence.

[2] Appellant next contends that the trial court erred

in denying the motion for mistrial when two nonsubpoenaed

defense witnesses, the Reagans, refused to

appear to testify. Defense counsel sought to introduce

testimony of Falcon’s forcing his way into the Reagan&

home, threatening to kill Mr. Reagan, and shooting into

the Reagan vehicle several times. Appellant argues

that the Reagan testimony would have hurt Falcon’s

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498 So.2d 1258, Melendez v. State, (Fla. 1986)

credibility and might have caused the jury to believe

that he was the perpetrator. We cannot fault the trial

court for refusing to declare a mistrial when nonsubpoenaed

witnesses failed to appear. Moreover,

inasmuch as the prosecutor agreed to a stipulation as to

what their testimony would be and the stipulation was

read to the jury, appellant suffered no prejudice. W e

affirm on this point.

[3] Appellant has not specifically challenged the

sufficiency of the evidence by "1261 which he was

convicted, but this is a matter we consider nonetheless.

We have carefully considered the record iu this case,

and we have concluded that the jury’s verdict is

supported by competent substantial evidence. That is,

a rational trier of fact could have found proof of guilt

beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

It is not the province of this Court to reweigh

conflicting testimony. Tibbs v. State, 397 So.2d 1120

(Fla.1981), fi 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982). Rather it is within the province

of the jury to determine the credibility of witnesses and

to resolve factual conflicts. Jent v. State, 408 So.2d

1024 (Fla.), cert. denied, 457 U.S. 1111, 102 S.Ct.

2916, 73 L.Ed.2d 1322 (1982). Absent a clear

showing of error, its findings will not be disturbed. Id.

[4] Regarding the penalty phase of the trial, appellant

argues that the aggravating factors found by the trial

court were not proved beyond a reasonable doubt. H e

first challenges the factor that the defendant has

previously been convicted of a felony involving the use

or threat of violence to a person, section 92 1.14 1(5)(b),

Florida Statutes (1983), contending that the record of

conviction for a robbery that occurred ten years

previously cannot support this circumstance. This

argument is without merit. (FNl)

[5] Appellant argues that it was error for the trial

court to fmd that the murder was committed while the

defendant was engaged in the commission of a robbery,

section 92 1.14 1(5)(d), in that there was no proof of a

robbery in this case. We disagree with appellant. T h e

jury found appellant guilty of robbery, and its verdict is

supported by competent substantial evidence. Jcnt.

[6] [7] [&] Appellant contends that the murder was not

"especially wicked, evil, atrocious and cruel" because

the gunshot to the head would have caused

instantaneous death according to the medical examiner.

(FN2) This contention ignores the slitting of the

victims throat and his pleas for mercy and knowledge

of his impending doom. Whether appellant only fired

the shot and his accomplice slit the throat is immaterial.

James v. State, 453 So.2d 786 (Fla.), cert. denied, 469

U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984).

The heinous, atrocious and cruel factor is supported by

the record in this case. Appellant also challenges the

921,141(5)(i). We reject his contention that it is

unsupported. Appellant requested to be driven to the

victim’s beauty school and to be left there for one and

one-half to two hours. He went there for the purpose

of getting the victims jewelry and money, and he knew

he would have to encounter the victim to take his

jewelry from him. The record supports his planning

this terrible crime well in advance.

Appellant also complains that the trial court read the

list of aggravating circumstances to the jury without

defining or illustrating the technical meaning of any of

the words. Our review of this issue is foreclosed, not

having been preserved at trial.

[9] Appellant’s last argument is that the jury

conviction could have rested upon felony murder, so

that he should not have been sentenced for both the

robbery and the murder. This point is meritless, as a

defendant can be convicted and sentenced for both

felony murder and the underlying felony. State v.

Enmund, 476 So.2d 165 (Fla.1985). Moreover it is

not error to convict and sentence for both crimes when

appellant was indicted for premeditated murder, the

jury was instructed on premeditated murder, and the

evidence supports premeditated murder. Blanco v.

State, 452 So.2d 520 (Fla.l984), cert. denied, 469 US.

1181, 105 S.Ct. 940,83 L.Ed.2d 953 (1985).

guilt or penalty stages of the trial and having

determined that the imposition of the death sentence

upon the defendant for the murder in this case is in line

proportionally with other cases in which the death

penalty has been imposed, as we do in aftirming

sentences in these cases, Williams v. State, 437 So.2d

80 L.Ed.2d 164 (1984) we affii a p p e l l a n t ’ s

convictions and sentences.

It is so ordered.

EHRLICH, JJ., concur.

BARKETT, J., concurs specially with an opinion.

ADKINS, J., concurs in the conviction, but concurs in

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498 So.2d 1258, Melendez v. State, (Fla. 1986)

the result only with the sentence.

BARKETT, Justice, concurring specially.

1 agree with the msjority that the evidence in this case

which is delineated with care in the majority opinion is

sufficient to support Melendez’s conviction There

was competent substantial evidence upon which the

jury could have found that Melendez committed this

robbery-murder. See Jent v. State, 408 So.2d 1024,

1028 (1981), cert. denied, 457 U.S. 1111, 102 S.Ct.

2916, 73 L.Ed.2d 1322 (1982). I do not, however,

believe that the quality of that evidence is sufficient to

support imposition of the death penalty.

Under our constitution, this Court hears appeals horn

all final judgments imposing the death penalty. Art. V,

Sec. 3(b)(l), Fla. Const. It is our duty to

indeoendentlv determine whether imposition of the

death penalty is warranted. See Sec. 921.141(4),

Fla.Stat. (1985). See also Aldridge v. State, 351 So.2d

942, 944 n. 4 (Fla.1977) (we have a duty to review the

record in every case where the death penalty is

imposed), cert. denied, 439 U.S. 882,99 S.Ct. 220, 58

L.Ed.2d 194 (1978); Swan v. State, 322 So.2d 485,

489 (Fla.1975) (this Court has a duty to consider

record to assure death penalty is justified). The United

States Supreme Court has noted that "the penalty of

death is qualitatively different from a sentence of

imprisonment., , , [and] there is a corresponding

difference in the need for reliability in the

determination that death is the appropriate punishment

in a specitic case." Woodson v. North Carolina, 428

U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944

(1976). See also Gardner v. Florida, 430 U.S. 349,

357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977)

(death is a diflerent kind of punishment from any

other). In light of this, I believe that our responsibility

to independently review death sentences includes an

evaluation of the evidence supporting guilt to determine

whether a death sentence is appropriate.

While a jury verdict of guilt based on competent

substantial evidence is sufficient for upholding

convictions and prison sentences, I do not believe it is

always enough for upholding a death sentence. There

are cases, albeit not many, when a review of the

evidence in the record leaves one with the fear that an

execution would perhaps be terminating the life of an

innocent person,

In Spa&no v. Florida, 468 U.S. 447, 104 S.Ct. 3154,

82 L.Ed.2d 340 (1984), Justice Stevens wrote an

opinion concurring in part and dissenting in part, which

better expresses the thought:

While the crime for which petitioner was convicted

was quite horrible, the case against him was rather

weak, resting as it did on the largely uncorroborated

testimony of a drug addict who said that petitioner had

bragged to him of having killed a number of women,

and had led him to the victims body. It may well be

that the jury was sufficiently convinced of petitioner’s

guilt to convict him, but nevertheless also sufficiently

troubled by the possibility that an irrevocable mistake

might be made, coupled with evidence indicating that

petitioner had suffered serious head injuries when he

was 20 years old which had induced a personality

change, App. 35, see also [Snaziano v. State ] 433

So.2d [508] at 512 [Fla.1983] (McDonald, J.,

dissenting), that the jury concluded that a sentence of

death "1263. could not be morally justified in this

case.

Id. at 488 n. 34, 104 S.Ct. at 3178 n. 34.

Similarly, the case against Melendez rests solely on

the uncorroborated testimony of a convicted felon who,

according to one witness, had pledged to destroy the

defendant. The jury is clearly entitled to believe the

convict’s testimony, and a verdict based on this

evidence cannot and should not be disturbed.

However, the law must provide for the situation where

the quantum of proof does not foreclose doubts as to

guilt, I am persuaded by Justice Marshall’s view that:

[T]he "reasonable doubt" foundation of the adversary

method attains neither certainty on the part of the

factfmders nor infallibility, and accommodations to

that failing are well established in our society. See

also Jackson v. Virginia, 443 U.S. 307, 317-318, 99

S.Ct. 2781,2788,61 L.Ed.2d 560 (1979) (reversal of

jury verdict supported by insufficient evidence). I n

the capital sentencing context, the consideration of

possible innocence as a mitigating factor is just such

an essential accommodation.

Burr v. Florida, --- U.S. ----, 106 S.Ct. 201, 203, 88

L.Ed.2d 170 (1985) (Marshall, J., dissenting from

denial of certiorari).

As Justice Marshall points out in his dissent from

denial of certiorari in Heiney v. Florida, 469 U.S. 920,

921-22, 105 S.Ct. 303, 303-05, 83 L.Ed.2d 237

(1984):

This Court, in Lockett [v. Ohio, 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973 (1978) 1, and then more

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

decisively in Eddings [v. Oklahoma, 455 U.S. 104,

102 S.Ct. 869, 71 L.Ed.2d 1 (1982) 1, held that g

aspect of the case that could rationally support

mitigation must be deemed a legally valid basis for

mitigation. There is certainly nothing irrational--

indeed, there is nothing novel--about the idea of

mitigating a death sentence because of lingering

doubts as to guilt. It has often been noted that one of

the most fearful aspects of the death penalty is its

finality. There is simply no possibility of correcting a

mistake, The horror of sending an innocent

defendant to death is thus qualitatively different from

the horror of falsely imprisoning that defendant. T h e

belief that such an ultimate and final penalty is

inappropriate where there are doubts as to guilt, even

if they do not rise to the level necessary for acquittal,

is a feeling that stems from common sense and

tundamental notions of justice. As such it has been

raised as a valid basis for mitigation by a variety of

authorities.

The wisdom behind mitigating death sentences in

the face of doubts as to guilt led the drafters of the

Model Penal Code to include that factor in their

model death penalty statute as a mitigating factor so

strong that its presence would exclude the possibility

of death as a matter of law.

Death Sentence Excluded. When a defendant is

found guilty of murder, the Court shall impose

sentence for a felony of the first degree Ti.e., a noncapital

offense] if it is satisfied that:

.*,.

(fj although the evidence &ices to sustain the

verdict, it does not foreclose all doubt respecting the

defendant’s guilt. ALI, Model Penal Code Sec.

See also Smith v. Wainwright, 741 F.2d 1248, 1255

(11 th Cir. 1984) (quoting Smith v. Balkcom, 660 F.2d

573, 580 (5th Cir.1981), modified, 671 F.2d 858

(1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74

L.Ed.2d 148 (1982)) (jurors may hold a genuine, if not

a reasonable, doubt of guilt), cert. denied, 470 U.S.

1088, 105 S.Ct. 1855,85 L.Ed.2d 151 (1985).

In summary, I believe that the nature and strength of

the evidence of guilt should be considered in upholding

a death sentence. After careful review of the record in

this case, I believe that the evidence does not rise to the

level of certainty that should support imposition of the

death penalty,

FNI. Just as the robbery supports this aggravating

factor, it also negates the existence of the mitigating

factor of lack of significant history of criminal

activity. Sec. 921,141(6)(a).

FN2. The issue was not raised below or on this appeal,

but we note that the trial court’s instruction on the

Sec. 92 1.14 1(5)(h) factor substituted "wicked, evil"

for "heinous," We find no reversible error.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

612 So.2d 1366, Melendez v. State, (Fla. 1992)

17 Fla. L. Week. S699

No. 75081.

Supreme Court of Florida.

Rehearing Denied Feb. 17,1993.

Defendant was convicted of first-degree murder and

armed robbery. The Supreme Court, 498 So.2d 1258,

affirmed. Defendant moved for postconviction relief.

The Circuit Court, Polk County, Charles A. Davis, Jr.,

J., summarily denied motion. Defendant appealed,

The Supreme Court held that: (1) issues that related to

alleged errors which, even if meritorious, had to be

raised on direct appeal were procedurally barred and

would not be further addressed; (2) record did not

support claimed m violations or defendant’s claim

that trial counsel was ineffective during both guilt and

penalty stages; and (3) defendant’s argument that his

death sentence was disproportionate and in disparity

with treatment of his alleged accomplice was

misplaced, as that accomplice was never charged with

a capital offense.

Affiied.

Barkett, C.J., concurred in result only.

1. CRIMINAL LAW -998(3)

110 ----

1 1 OXXIII Judgment, Sentence, and Final

Commitment

11 Ok998 Post-Conviction Relief; Setting Aside

Judgment

1 lOk998(3) Presentation of question in prior

proceedings.

Fla. 1992.

Issues relating to alleged errors which, even if

meritorious, had to be raised on direct appeal if they

were to be raised at all were procedurally barred and

would not be further addressed on appeal from denial

of defendant’s motion for postconviction relief.

2. CRIMINAL LAW -700(2.1)

110 ----

110xX Trial

11 OXX(E) Arguments and Conduct of Counsel

1 lOk700 Rights and Duties of Prosecuting

Attorney

1 lOk700(2) Disclosure or Suppression of

Information

1 lOk700(2.1) In general,

Formerly 1 lOk700(2)

Fla. 1992.

In order to prove m violation, defendant must

show that government possessed evidence favorable to

defendant (including impeachment evidence), that

defendant does not possess the evidence nor could he

obtain it himself with any reasonable diligence, that

prosecution suppressed the favorable evidence, and

that, had the evidence been disclosed to the defense, a

reasonable probability exists that the outcome of the

proceedings would have been different.

3. CRLMINAL LAW -641.13(7)

1 1 0 I--*

1lOXX T r i a l

11 OXX(B) Course and Conduct of Trial in General

11 Ok64 1 Counsel for Accused

1 lOk64 1.13 Adequacy of Representation

11 Ok64 1.13 (2) Particular Cases and Problems

1 lOk64 1.13 (7) Post-trial procedure and review.

Fla. 1992.

Effectiveness of counsel’s performance during penalty

stage of first-degree murder and armed robbery

prosecution had to be viewed in light of defendant’s

desire for death penalty and wish not to present

mitigating evidence. U.S.C.A. ConstAmend. 6.

4. CRIMINAL LAW @=1134(3)

110 ----

1 1 OXXIV Review

1 lOXXIV(L) Scope of Review in General

1 10kl134 Scope and Extent in General

1 lOkl134(3) Questions considered in general.

Fla. 1992.

Proportionality is used to compare death sentence to

other cases approving or disapproving a sentence of

death, and arguments relating to proportionality and

disparate treatment are not appropriate where

prosecutor has not charged the alleged accomplice with

a capital offense.

Representative; Gail E. Anderson, Asst. CCR and

Harun Shabazz, Staff Atty., Office of the Capital

Collateral Representative, Tallahassee, for appellant,

Robert A. Butterworth, Atty. Gen., and Candance M.

Sunderland, Asst. Atty. Gen., Tampa, for appellee.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

612 So.2d 1366, Melendez v. State, (Fla. 1992)

PER CURIAM

The appellant, Juan Roberto Melendez, was convicted

of tirst-degree murder and armed robbery for which he

received a death sentence and a life sentence

respectively. This Court atiiied both the convictions

and sentences. Melendez v. State, 498 So.2d 1258

(Fla. 1986). Melendez appeals the summary denial of

his motion for postconviction relief filed pursuant to

rule 3.850, Florida Rules of Criminal Procedure. We

have jurisdiction pursuant to article V, section 3(b)(l),

Florida Constitution.

[l] Melendez raises eleven issues in his motion for

postconviction relief. Issues 6, 8, and 10 do not

involve ineffective assistance of counsel or call into

question the fundamental fairness of the trial. These

issues relate to alleged errors which even if meritorious

must be raised on direct appeal if they are to be raised

at all, Blanc0 v. Wainwright, SO7 So.2d 1377

(Fla. 1987). We find these issues to be procedurally

barred and decline to further address the claims. (FNl)

[2] Issues (1) and (2) assert violations under Brady v.

Maryland, 373 U.S. 83,83 SCt. 1194, 10 L.Ed.2d 215

(1963). Melendez argues that the State withheld

background information relative to State’s witness

David Luna Falcon and failed to correct falsehoods in

the testimony of Detective Glisson regarding Falcon’s

background. The record does not support such a claim.

Trial counsel cross-examined Falcon relative to his

prior record, his drug use, his cooperation with law

enforcement authorities, and his payment for furnishing

information to the police. Detective Glisson testified

for the defense and corroborated the fact that Falcon

had worked as a drug informant. Defense witnesses

testified * 1368 relative to Falcon’s reasons for

testifying against Melendez and his close relationship

with Detective Glisson. Additional details regarding

Falcon’s prior criminal record, his location at the time

of the offense, and his history of mental illness and drug

addiction was either known by defense counsel or was

as accessible to the defense as it was to the State. In

order to prove a Brady violation, a defendant must

show:

(1) that the Government possessed evidence favorable

to the defendant (including impeachment evidence);

(2) that the defendant does not possess the evidence

nor could he obtain it himself with any reasonable

diligence: (3) that the prosecution suppressed the

favorable evidence; and (4) that had the evidence

been disclosed to the defense, a reasonable

probability exists that the outcome of the proceedings

would have been different.

Hegwood v. State, 575 So.2d 170, 172 (Fla.1991)

(quoting United States v. Meros, 866 F.2d 1304, 1308

(11th Cir.) cert. denied, 493 U.S. 932, 110 S.Ct. 322,

107 L.Ed.Zd 3 12 (1989) (citations omitted)). It is clear

from the record that Melendez’s claim does not meet

this standard of proof.

Issues (3) and (4) argue trial counsel’s ineffectiveness

during both the guilt and penalty phase in that counsel

failed to investigate and prepare for cross-examination

of key State witnesses, failed to subpoena defense

witnesses, failed to present the complete testimony of

defense witnesses, failed to present available mitigating

evidence, failed to properly argue disparate treatment

of Melendez’s accomplice, failed to advise Melendez of

the consequences of not presenting mitigating

circumstances, and failed to secure mental health

experts.

The record does not support appellant’s claim.

Counsel impeached John Berrien’s testimony by

revealing that he was a convicted felon, had falsified

information on his workers’ compensation insurance,

and had his first-degree murder charge in this case

reduced to accessory-alter-the-fact. We have no reason

to believe that the decision to forego further crossexamination

was not a tactical decision, In addition to

impeaching Falcon’s testimony relative to his criminal

record and his work as a paid informant, counsel

presented eight witnesses to refute Falcon’s testimony.

When the Reagans failed to appear as defense

witnesses, trial counsel was able to get their testimony

before the jury by way of stipulation and presented

Melendez’s girlfriend and mother as alibi witnesses.

We do not find counsel’s performance during the guilt

phase outside the wide range of professional competent

assistance guaranteed under the Sixth Amendment of

the U.S. Constitution. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984).

[3] In assessing counsel’s performance during the

penalty stage, it must be viewed in light of Melendez’s

statement that he wanted the death penalty because it

would allow him to receive a speedy trial and more

publicity to prove his innocence and that he would

rather take that gamble than go to prison for a long time

for something he didn’t do. He informed the court that

he did not want to present mitigating evidence and that

he would rather receive the death sentence than a life

sentence. In spite of Melendez’s attempted rush to

judgment, his lawyer argued and the trial judge

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

612 So.2d 1366, Melendez v. State, (Ha. 1992)

instructed that the jury could consider in mitigation:

(1) whether Melendez had a signiticant prior criminal

history; (2) whether he was an accomplice to the crime

which was committed by another person and that his

participation was relatively minor; (3) his age at the

time of the crime; (4) any other aspect of his character

or circumstances of the offense. We find nothing in the

record calling Melendez’s sanity or mental health into

question or alerting counsel or the court of the need for

a mental health evaluation; accordingly, we do not find

that counsel was ineffective in failing to investigate

further and present additional evidence.

[4] Issue (5) alleges that Melendez’s death sentence is

disproportionate and in disparity with the treatment of

his alleged accomplice, George Berrien, who was never

charged in this crime. Melendez’s argument on this

point is misplaced. Proportionality is used to compare

a death sentence to other cases approving or

disapproving a sentence of death. Arguments *1369.

relating to proportionality and disparate treatment are

not appropriate here where the prosecutor has not

charged the alleged accomplice with a capital offense.

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49

L.Ed.2d 913 (1976). Palmes v. Wainwright, 460 So.2d

During the penalty phase, the jury was given the

following instruction:

The aggravating circumstances that you may

consider are limited to any of the following that are

established by the evidence:

And three, the crime for which the defendant is to be

sentenced was especially wicked, evil, atrocious or

cruel.

Melendez claims as issue (7) that this instruction

"provided for no genuine narrowing of the class of

people eligible for the death penalty, because the terms

were not defined in any fashion." This claim, however,

was already addressed on direct appeal, wherein we

stated:

Appellant also complains that the trial court read the

list of aggravating circumstances to the jury without

defining or illustrating the technical meaning of any of

the words. Our review of this issue is foreclosed, not

having been preserved at trial.

Melendez, 498 So.2d at 1261. The issue is thus

procedurally barred.

We note that although a similar instruction on this

aggravating circumstance was recently ruled invalid by

the United States Supreme Court in Espinosa v.

Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854

(1992), this Court’s finding on direct appeal in the

present case that the matter was not preserved is

dispositive. See Sochor v. Florida, --- U.S. ----, 112

SCt. 2114, 119 L.Ed.2d 326 (1992) (claim of

unconstitutional vagueness of "heinous, atrocious, or

cruel" instruction will not be heard by United States

Supreme Court where Florida Supreme Court finds it

unpreserved). Even if it had been preserved, we find

the error harmless beyond a reasonable doubt since

there is no reasonable possibility that the erroneous

instruction contributed to the jury recommendation.

See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

In issue (9), Melendez asserts that the jurors were

misled by instructions and arguments which diluted

their sense of responsibility in violation of Caldwell v.

Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d

231 (1985). This argument is without merit because

Caldwell does not control Florida law on capital

sentencing. We find that the instructions as given

adequately advised the jury of its responsibility and that

the prosecutor’s comments were not improper,

Provenzano v. Dugger, 561 So.2d 541 (Fla. 1990);

Combs v. State, 525 So.2d 853 (‘Fla. 1988).

Issue (11) alleges that counsel was ineffective for

failing to argue that the death sentence rests upon an

unconstitutional automatic aggravating circumstance

(committed in the course of a felony) in violation of

Maynard v. Cartwright, 486 U.S. 356,108 S.Ct. 1853,

100 L.Ed.2d 372 (1988). We have repeatedly rejected

this argument on the merits. Squires v. State, 450

So.2d 208, 212 (Fla.), cert. denied, 469 U.S. 892, 105

S.Ct. 268, 83 L.Ed.2d 204 (1984). Counsel cannot be

deemed ineffective for failing to make this meritless

argument.

The denial of the motion for postconviction relief is

affirmed.

It is so ordered.

KOGAN and HARDING, JJ., concur.

BARKETT, C.J., concurs in result only.

FNl. Issue 6 is whether the trial court failed to provide

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

calculated, and premeditated." Issue 10 is whether

the jury instructions unconstitutionally shifted to

Melendez the burden of proving that a life sentence

was warranted.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works

CASE NO: CFW1016A2

not credible witnesses and their testimony, either individually or curuulativcly, falls short of the

prostitute and drug addict. Her best fiicnd was Vernon James aud they were constantly togcthcr.

Everyone who knew Vernon James knew Deborah Ciotti, which of course raises the question of

how she can be considered newly discovered, Regardless, she now says James told her a few days

before the murder that he was going to rob the beauty shop. Later she saw James meet some

other men and proceed in the direction of the murder sccnc. Allcr she read about the murder she

asked James if he did it and he responded by showing her some money and drugs. I-lc ncvcr told

her he killed the victim. Because she didn’t wish to get involved, she purposely avoided further

discussion about the murder with James, Her testimony fails both the second and third prong of

the JQIIC.S test.

Janice Dawson met Vernon James at a first appearance hearing in the Polk County jail. Previously

both had been charged with unrelated crimes. Their relationship contiuued while both of them

of prison. On many occasions James told her that he had been involved in the murder, Indeed, he

the victitn nor did he ever say who had commited the murder. She described James as a con man,

testimony fails the third prong of the w test,

Sandra Kay James is Vernon James’ sister who is presently serving a thirty year prison sentence

knew Roger Alcott, Melendez’ trial attorney, During the pertinent time period she was addicted

to drugs. She claims her brother told her that he set up the robbery of the victim and was present

when he was murdered but did not actually commit the murder. She admits that when the

prosecutor attempted to speak with her concerning the affidavit she lilcd in this matter, she

refused to talk to him. Her testimony fails both the second and third prong of the J3ne.s test.

agreement. Attacking his credibility was a major part of the Melcndcz defense. Hiqmunerob~and

frequently contradictory statements were brought to the attention of the jury. Yet the$iry 23

apparently believed him. He now claims that parts of his testimony were false. He is%$&ue akcut

which parts of his trial testimony he is recanting. Some of it hc claims hc simply rna&?up,for~no

.‘, ..\i

particular reason. Other parts were the result of police intimidation and coercion. Th@niainder,

he stated, was true. This inmate of the New Mexico prison system was completely unl$l,i&abi~

Dwight Wells is a criminal defense attorney who, at the time of the trial, was an assistant public

during his representation of Barrien, he received a call from Vernon James asking him to come to

‘.

the jail for a visit. He made several visits to the jail to visit his friend, Vernon James. He did not

Wells claims that James confessed to the murder for which Mclcndcz and llal-ricn wcrc chargctl.

of the confessions. He is not sure of any of the dates when these confessions were given but dots

remember that they occurred during the time he was representing Barricn. Ilc doesn’t recall if he

ever mentioned these confessions to Roger Alcott, Melendez’ attorney. 1-1~ doesn’t remember if

he contacted the State Attorney to inform him that innocent men, including his client, had been

indicted. He thinks he might have mentioned the confessions to his client but is not sure. In any

case, he did proceed to plead his client tb certain lesser charges in exchange for his client’s

inconceivable that he would strike a deal to have his client, Barrien, testify against Mclendez in a

death penalty case if he believed that both Barrier1 and Melendez were innocent. Yet now, twelve

years after the conviction, he claims that Vernon James confessed that hc and the victim wcrc

homosexual lovers who had a light about aggressive sexual advances which rcsultcd in James

killing the victim. Never mind that the physical evidence of stabbing and shooting and robbcly are

inconsistent with this story. Suflice it to say that this Mr. Wells’ testimony fails both the second

and third prong of the ti test.

In summary, the newly discovered evidence claim rests on the testimony of three convicted felons

who say Vernon James made incriminating statements about the murder, the partial recanting of a

co-defendant’s testimony, and a lawyer’s vague mcmorics of Vcmon James’ several confessions.

The original defense was that Vernon James did it. The jury rejected that defense and none of the

above would likely have been credible enough to change that verdict in my opinion.

The next claim is that the state violated the holding of&a& v. Mal-yl&, 373 IJ.S. 83, 83 S.Ct.

1194, IO L.Ed.2d 215 (1963), when it withheld material exculpatory cvidcncc and knowingly

presented false testimony. In order to prove a m violation the defendant must prove the

following:

(1) that the Government possessed evidence favorable to the defendant (including

impeachment evidence); (2) that the defendant does not possess the evidence

nor could he obtain it himself with any reasonable diligence; (3) that the prosecution

suppressed the favorable evidence; and (4) that had the evidence been disclosed

to the defense, a reasonable probability exists that the outcome of the proceedings

would have been different. \n

tes v. MerqS 866 F.2d 1304, 1308 (1 lth Cir.), m, 110 S.Ct. 32?l!$P_7

&wood v. &&, 575 So.2d 170 (Fla. 1991).

yc

L.Ed.2d 312 (1989);

cm :,.*.-I r--

;,::-$ b-J

+:-:: CJ

statements inculpating Melendez in the murder. The officers had a written outline of #$g qz

statement they wanted Berrien to make and they coached him through his statement +@EequgjJJt

mastered a portion of their statement. While the police wcrc coaching and thrcatcning him, they

turned it off. They threatened his life if he did not say what they told him to say so "I just

repeated what they told me to say." Oddly, he concludes his allidavit with this: "If Juan

Melendez’ trial attorney had asked me about the facts stated above, I would have told him and

would have testified about it during Juan Melendcz’ trial."

The major problem with this so-called &a& violation is that in order to sustain it one has to

believe John I3errien. I do not believe John Berrien. Berrien had at least three interviews with law

enforcement regarding this murder. The tirst occurred on March 7, 1984 at the Lnkeland Police

Department. The interview was conducted by Florida Department of Law Enforcement Agent

Tom Roper. Glisson and Knapp were there as was a Lakeland Police detective. The second

occurred March 15, 1984 at the Auburndale Police Department. Presumably, this is the interview

Berrien complains of in his nfidavit and testimony. Ilc was ar-rcstcd allcr this intcrvicw and tnkcn

to the Polk County Jail, Two days later Berrien called Det. Glisson and asked him to come to the

jail because Berrien had more to say. Glisson, and eventually Roper, took a third confession at

the jail. While the three statements differ in detail, they are basically the same. It is dificult to

understand how Berrien’s allegedly coerced statement on March 15th vitiates the statement he

Berrien himself. It seems unlikely that Berricn would summon his tormentors fi-om Auburndale

only to subject himself to further threats and coersion. One may certainly question Uerrien’s

motives for giving these statements, but there is no credible evidence of police misconduct. None

of the four elements of a I&& violation were proved. Therefore, it is adjudged:

1. That the motion to vacate judgment and sentence is denied.