This proceeding involves the appeal of the circuit court's

denial of Mr. Melendez's second motion pursuant to Fla. R. Crim.

P. 3.850 after an evidentiary hearing. The following symbols

will be used to designate references to the record:

"R. II -- record on direct appeal;

"PC-R1 ~ 11 -- record on appeal of first Rule 3.850 motion;

motion.

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Mr. Melendez has been sentenced to death. The resolution of

the issues involved in this action will therefore determine

whether he lives or dies. This Court has not hesitated to allow

oral argument in other capital cases in a similar procedural

posture. A full opportunity to air the issues through oral

argument would be more than appropriate in this case, given the

seriousness of the claims involved and the stakes at issue. Mr.

Melendez, through counsel, accordingly urges that the Court

permit oral argument.

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Battle v. Delo,

Brady v. Maryland,

Breedlove v. Sinqletary,

* *

* *

. .

Cammarano v. State,

Chambers v. MississiDDi,

410 U.S. 284 (1973) a . . .

Gunsbv v. State,

Hallman v. State,

371 so. 2d 482 (Fla. 1979) .

Hildwin v. Duqqer,

Jean v. Rice,

945 F.2d 82 (4th Cir. 1991)

Jones v. State,

591 so. 2d 911 (Fla. 1991) .

Kvles v. Whitlev

Melendez v. State,

498 So. 2d 1258 (Fla. 1986)

Melendez v. State,

612 So. 2d 1366 (Fla. 1992)

Middleton v. Evatt,

Ouimette v. Moran,

942 F.2d 1 (1st Cir. 1991) .

Parker v. State,

641 So. 2d 369 (Fla. 1994) .

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Provenzano v. State,

616 So. 2d 428 (Fla. 1993) ,

Scott v. State,

657 So. 2d 1129 (Fla. 1995)

State v. Gunsby,

670 So. 2d 920 (Fla. 1996)

Strickland v. Washinqton,

466 U.S. 668 (1984) . . .

Swafford v. State,

679 So. 2d 736 (Fla. 1996)

United States v. Asurs,

427 U.S. 97 (1976) . . . .

United States v. Baqley

473 U.S. 667 (1985; . . .

United States v. Burqos, .- . _

*

94 F.3d 849 (4th Cir. 1996)

United States v. Rivenbark,

81 F.3d 152 (4th Cir. 1996)

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43, 70, 75

44, 65, 71

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64, 65

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On September 13, 1994, Mr. Melendez sought Rule 3.850 relief

based on newly discovered evidence. The circuit court ordered an

filed an Order Denying Motion to Vacate Judgment and Sentence.

Mr. Melendez filed a Motion for Rehearing which was denied. This

appeal followed.

Mr. Melendez is innocent of the offense for which he was

convicted and sentenced to death. The murder was committed by

another man, Vernon James, who confessed his involvement in the

crime to at least four people, who testified at the evidentiary

hearing in the lower court. Mr. James' confessions are

consistent with his possession of money and drugs on the morning

after the crime and his possession of Mr. Baker's jewelry. This

evidence is also consistent with that of a trial witness, perhaps

friend Harold Landrum, aka llBobo,ll with Mr. Baker shortly before

his death. This new evidence when viewed cumulatively presents a

compelling case for Mr. Melendez's innocence.

Mr. Melendez was convicted and sentenced to death for the

September 13, 1983, murder of Mr. Delbert Baker. The murder

occurred at Mr. Baker's beauty school in Auburndale, Florida.

Police failed to prevent the contamination of the crime scene and

to preserve important evidence that would have assisted their

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investigation- Stella Dunlap, a beauty school employee,

testified that the police took the sign-in book (R. 274-75).

Detective Knapp admitted examining the customer sign-in log at

the crime scene, but the police later denied recovering it and

failed to produce it for the defense (R. 386-87). Detective

Knapp testified that he did not consider this evidence important

enough to copy for his records (R. 387). Dr. Drake, the

pathologist, testified that the police gave him permission to use

the phone at the crime scene although the investigation was

incomplete and the phone had not yet been checked for prints (R.

354). The police at the scene were unconcerned with preserving

fingerprints on the phone although bloody footprints, presumably

left by Mr. Baker's killer, led from the body into the office and

were concentrated near the phone (R. 354). The police also

failed to properly secure the crime scene when several

employee/students were permitted inside the beauty school the day

The police checked the victim's car, and although they found a

moist substance on the seat, they did not preserve it for testing

(R. 388) e The police took a picture at the crime scene of a

refrigerator indicating that a bullet had ricocheted off its side

(R. 521). However, because their evidence recovery was sloppy,

the actual projectile was found twelve days later by a cleaning

person (R. 375). The police at the scene also failed to check

the many razors that could normally be found in the hair salon

for blood or prints although it was obvious at the time that Mr.

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Baker's throat had been cut with a sharp knife or razor (R. 389) e

The police were equally sloppy in preserving the evidence

they did recover from the crime scene. A pair of shoes found

lost (R. 391, 523). A large hunting knife with a brown stain on

it was found in a drawer near the body but was never checked for

prints or submitted to a lab (R. 385-86, 528) a Finally, the

police retrieved a blood sample at the scene that was believed to

belong to Mr. Baker's killer but stored it in an evidence locker

despite their awareness that blood must be refrigerated in order

to be preserved (R. 529); as result, the sample putrefied and the

back because of its contaminated state (R. 391) e

The first lead developed by the police was Terry Barber who

testified for the defense that he arrived at the beauty school at

about 5:45 p.m. on the night of the murder (R. 572) e While he

identified as Vernon James and "Bobo," whose real name is Harold

Landrum (R. 575, 647-48). Mr. Barber, a frequent customer at the

beauty school, testified that he had never seen Mr. Melendez

before (R. 579). After speaking to Mr. Baker, Mr. Barber left

the beauty school at about 6:15 p.m. (R. 577). Mr. James was

picked up for questioning the next morning, and the police seized

his clothes and shoes to test for blood or other evidence

connecting him to the crime; however, these items were returned

to Mr. James without testing and Mr. James was released (R. 631).

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Significantly, Mr. James' fingerprints were never compared to

those retrieved from the crime scene (R. 642). When Mr.

Melendez's trial attorney asked FDLE Agent Roper whether Mr.

James had admitted to being present at the crime, the State's

objection was sustained (R. 643-44) e The defense unsuccessfully

argued that such an admission was admissible as a statement

against penal interest (R. 644). Harold Landrum, aka "Bobo," was

also questioned by the police, and a pair of sneakers with a

" dot " tread matching the bloody prints at the crime scene were

seized from him (R. 631). However, Mr. Landrum's shoes were

never tested and he was released from custody (R. 631).

Police attention focused on Mr. Melendez approximately six

months later when David Luna Falcon told Agent Roper of the

Florida Department of Law Enforcement that Mr. Melendez had

confessed to the murder (R. 440, 468) e Mr. Falcon's story was

that Mr. Melendez told him that a man named John had driven Mr.

Melendez and another black man to Mr. Baker's beauty school (R.

441). After the other man cut Mr. Baker's throat, the victim

began "picking up the blood" and throwing it at his assailants

(R. 443) .l Mr. Melendez allegedly told Mr. Falcon that as the

victim offered his assailants a million dollars to take him to

44, 456). According to Mr. Falcon's story, Mr. Melendez went to

'This story is contradicted by the testimony of the Medical

Examiner Dr. Drake who testified that the cut to Mr. Baker's

throat severed a vein, not an artery, and that the blood was from

the gunshots because a severed vein would not cause the victim to

bleed profusely (R. 353).

4

Mr. Baker's to have sex with him and rob him (R. 440, 442). Mr.

Falcon contacted Agent Roper about three weeks after Mr. Melendez

allegedly told him this story (R. 447).

MX. Falcon testified that he had worked an undercover

operation in Puerto Rico for the Justice Department (R. 435, 463-

641, that he sells information to law enforcement (R. 459), and

that he was currently working for the Auburndale Police

Department (R. 447-49, 459). He admitted that he had been

convicted of homicide (R. 452), but testified that he had never

carried a gun in Polk County (R. 462). Mr. Falcon denied knowing

claiming to be police officers broke into a home (R. 457).

However, Detective Glisson, who investigated this incident,

testified that the victims, Mr. and Mrs. Reagan, identified Mr.

Falcon as the man who broke into their home, kicked down a door,

threatened their lives, and shot three bullets into their car and

two stray bullets into the neighbor's lawn (R. 560-62). In

addition, the State stipulated that if able to testify, Mr.

Reagan would identify Mr. Falcon as the man who terrorized his

family (R. 425).2 Mrs. Reagan signed a waiver of prosecution

after being told that she could be charged with drug offenses (R.

hurt her (R. 539). Detective Glisson also testified that Mr.

2Mr. Melendez sought to have the Reagans testify at his

trial and received court approval of the costs for them to travel

from New England. However, trial counsel failed to subpoena them

and they did not appear for trial.

5

Falcon was working for him despite his homicide conviction, but

denied that he pressured the Reagans to drop the charges against

Mr. Falcon (R. 538, 540). Mr. Falcon testified that he and his

brother accompanied Detective Glisson when he interviewed John

Berrien at the county jail (R. 455).

The State also presented the testimony of John Berrien, a

convicted felon who had been charged with first degree murder for

Mr. Baker's death (R. 323). John Berrien spent one hundred and

six days in jail (R. 328) before he was offered a deal by which

he pled no contest to accessory after the fact and would be

released and placed on either probation or house arrest in

exchange for his testimony against Mr. Melendez (R. 324). John

Berrien testified that Mr. Melendez asked for a ride to Mr.

Baker's school in Auburndale so that he could have his hair done

and pick up some money (R. 305-06). John Berrien did not

remember the day or date when this occurred (R. 3081, or even

whether it was before or after his marriage on September 2, 1983

(R. 474). John Berrien testified that he drove his cousin George

Berrien and Mr. Melendez from Lakeland to Mr. Baker's school at

in the back of Mr. Melendez's pants that could have been a gun

He testified that he did not know whether George and Mr. Melendez

went into the beauty school but that he picked them up at about

5:30 or 5:45 p.m. (R. 333). George Berrien and Mr. Melendez were

not excited, scared, or bloody when he picked them up (R. 334).

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John Berrien testified that George Berrien and Mr. Melendez spoke

to each other in Spanish on the ride back to Lakeland (R. 316).

He also testified that sometime later, he was not sure when, he

drove George and Mr. Melendez to the train station where George

Berrien boarded a train for Delaware after Mr. Melendez gave him

two rings, a watch, and a gun to be sold there (R. 320-21).

George Berrien testified for the defense and denied

everything, including his ability to speak Spanish (R. 660). He

testified that he does not know Mr. Melendez but had seen him

once at his cousin John's house (R. 656). Although the State

argued at Mr. Melendez's trial that he was "equally guilty" and

l'equally involved . . . in committing the murder" (R. 786-871,

George Berrien was never arrested or charged with any crime (R.

657). George Berrien confirmed only one detail of John Berrien's

testimony against Mr. Melendez: that he took a train to Delaware

(R. 658, 665); however, he denied that his cousin drove him to

the station and testified that his cousin's car was in the repair

shop on the day he left for Delaware (R. 665) e George Berrien

testified that when he told his cousin to stop lying, John

Berrien replied that "if he changed his statement, the State

Attorney was going to put a murder charge on him, so he was going

to stick to what he's saying" (R. 661).

Agent Roper testified that no evidence of the crime was

found in John Berrien's car. Fingerprints lifted from the car

were sent for comparison with those taken from George Berrien and

Mr. Melendez, but no matches were found (R. 642-43). In

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addition, no matches were made when the prints found at the crime

scene were compared with those inside John Berrien's car (R.

643). The crime lab also found no blood or other evidence in the

car to support John Berrien's testimony (R. 641). The police did

not compare Mr. James' prints with those found at the crime scene

(R. 6421, although he was the original suspect.

Mr. Melendez also presented the testimony of Dorothy Rivera

that they were together from about 5:00 p.m. on the day of Mr.

Baker's death until the next morning (R. 487, 493). Ms. Rivera

specifically remembers that she spent that night with Mr.

Melendez because it was her first wedding anniversary and her

husband was out of the state (R. 484, 487). Ms. Rivera testified

that she had a conversation with her sister about her

relationship with Mr. Melendez and her plans to spend her wedding

anniversary with him (R. 487). Marie Graham and Wilson Angelo

Graham, Ms. Rivera's sister and brother-in-law, also testified

that during September 1983 Ms. Rivera was living with them but

that she spent nights with Mr. Melendez at his apartment (R. 501-

was at her house on September 13, 1983, with Ms. Rivera because

she had spoken to her sister about spending her wedding

anniversary with him (R. 502).

Ms. Rivera, Mr. Graham, and Ruby Colon, Ms. Rivera's mother,

also testified that Mr. Falcon had made statements in their

presence that he would either get Mr. Melendez in jail or would

kill him. Ms. Rivera testified that Mr. Falcon Iltold me that he

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was going to testify on [Mr. Melendezl and put him in jail" (R.

489). When Ms. Rivera asked whether the testimony that Mr.

Melendez had confessed was true, "[Mr. Falcon] said no. He said

I'm just going to hurt him" (R. 490). Mr. Graham testified that

Mr. Falcon had told him that he did not like Mr. Melendez and

that he wanted to kill him (R. 506). Ms. Colon also heard Mr.

Falcon make these statements about Mr. Melendez. She testified

that she heard Mr. Falcon say II[t]hat he was going to get him

killed, and if they didn't kill him, he would" (R. 510). Shortly

after making this statement, Mr. Falcon made a phone call and

then left Ms. Colon's house to meet someone at a stadium three

blocks away (R. 510-11). When asked whether Mr. Falcon ever told

her where he went when he left her house that night, Ms. Colon

responded: "[h]e just say he was trying to get [Mr. Melendezl

killed, that what he said, 'cause he didn't like him" (R. 469).

Mr. Falcon testified that he called Agent Roper from Ms. Colon's

apartment to set up a meeting and then left to tell him that Mr.

Melendez had confessed (R. 454-55). Agent Roper's testimony

and George Berrien and Mr. Melendez were involved in Mr. Baker's

death (R. 468).

Mr. Melendez also called Mr. James, the original suspect, as

testimony could be used against him, and he was then appointed a

lawyer who recommended that he not testify because his testimony

would tend to incriminate him (R. 595). Mr. James then refused

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to testify (R. 595). Mr. James later agreed to testify, but only

if his cellmate Roger Mims did not testify against him (R. 625-

26) m Mr. James was concerned that Mr. Mims' testimony would

create evidence for the State against him; he feared that Mr.

Mims would testify that Mr. James had confessed to cutting Mr.

Baker's throat (Id.). Mr. James indicated that he would be

willing to tell what he knew about Mr. Baker's death but that he

was not present (R. 626). Mr. Melendez's trial attorney

indicated to the court that if Mr. Mims did not agree to testify

against Mr. James, then Mr. James would testify for the defense

(Id.1 *

Mr. Mims' testimony had already been proffered by the

defense because the State objected to its admissibility (R. 598-

99) . Before he could be questioned about Mr. James'

incriminating statements, Mr. Mims expressed his reluctance to

willing to risk being held in contempt and sentenced to an

additional six months in order to avoid testifying (R. 612, 614).

Mr. Mims was willing to testify when the State agreed to move him

to another county jail (R. 622-23). Mr. Mims then testified that

Mr. James had confessed to Mr. Baker's murder and had told him

that the two men who were charged had nothing to do with it (R.

634). Mr. James had admitted that he had cut Mr. Baker's throat

and that his partners had shot him (R. 635). Further, Mr. Mims

testified that Mr. James had specifically said that Mr. Melendez

and another man named John were completely uninvolved (R. 635).

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Mr. James had told Mr. Mims that the victim was his lover (R.

639) and that the two other men involved in the killing were also

homosexual (R. 635). Mr. Mims had contacted the State Attorney's

Office with this information and had also spoken to Agent Roper

(R. 636),

In closing, the prosecutor argued that the issue in the case

crime.1' (R. 691). To decide who committed the crime, the

prosecutor urged the jury "to believe what John Berrien testified

to" (R. 695), and then went through the conflicts between John

Berrien's testimony and other testimony (R. 695-99).

Regarding Falcon, the prosecutor told the jurors they would

"have to decide if Mr. Falcon is a person worthly of belief or

not" (R. 699), and then pointed out that Falcon was in Puerto

Rico in September, 1983, and that Falcon had worked for the

Justice Department (R. 700). Later, the prosecutor asked, "Why

would [Falcon] lie?" (R. 704). Falcon would not lie, according

to the prosecutor, because he Ilha[d] nothing to gain in this

case." (R. 705). Falcon had "nothing to gain" because "he had

[Reagan] shooting even happenedI' and because:

Oh, he got a little money from the Auburndale

Police Department for helping them out on

some drug cases, but he was not charged in

this case. He did not agree to testify in

return for some deal. He had absolutely

nothing to gain at all by getting on the

witness stand. He even went to the police

with the information he got, they didn't come

looking for him and say, hey, David, what do

you know about the crime. He went out and

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developed information himself as to who

committed the crime and went to the police.

Now, probably the reason he did that is

because he worked for the police in the past.

He had been an informant of -- he called it

the Justice Department in the past and had

given information to law enforcement in the

past, so that's why he did it in this case,

but the man stands to gain nothing by his

testimony. There is no reason for him to get

on the witness stand and lie.

(R. 705-06).

Finally, at the close of the State's rebuttal argument,

after responding to the defense evidence, the prosecutor argued,

l'somebody's lying. That's going to be up to you to decide who's

lying and who's telling the truth" CR. 737), and concluded:

The evidence presented from the witnesses,

the State feels, proves beyond a reasonable

doubt that Juan Melendez was involved in the

murder. Now, Mr. Alcott can throw all sorts

of other names at you and say maybe this guy

did it, maybe that guy did it, but that

doesn't change the fact that John Berrien,

involvement in the offense, says Juan

Melendez was taken there that night by him,

and David Falcon testifies that Juan Melendez

admitted to me he committed the crime and

told me the facts of the offense which match

what happened, and based on that evidence the

State feels it has proven its case beyond a

reasonable doubt and Mr. Melendez should be

found guilty of the crime for one reason and

one reason only, and that is because he is

involved in the commission of the murder and

the robbery of Delbert Baker. Thank you.

(R. 737-38) (emphasis added).

Mr. Melendez's trial counsel in his opening statement

encouraged the jury to evaluate the credibility of the State's

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Berrien, both had reasons for testifying against Mr. Melendez (R.

241). Mr. Alcott told the jury that John Berrien had received

against Mr. Melendez. He then promised the jury that he would

show "the incredibility of the State's key witnesses" (R. 243).

Mr. Melendez's trial counsel also emphasized the importance of

Mr. James in his closing statement:

The third aspect of the defense is the fact

that someone else committed this crime and

someone else has admitted to committing this

crime; someone else the police knew as a

suspect way back then; the man who the police

dragged in very well right away that morning;

a person whose clothes were seized from him;

a person who was observed there by another

witness at the time, Terry Barber. a e

(R. 710).

B. THE FIRST RULE 3.850 MOTION

In 1989, Mr. Melendez filed his first motion under Fla. R.

Crim. P. 3.850. The circuit court summarily denied relief, and

this Court affirmed. Melendez v. State, 612 So. 2d 1366 (Fla.

1992) *

In his first Rule 3.850 motion, Mr. Melendez alleged, inter

alia, that due to trial counsel's ineffectiveness and/or State

misconduct, the jury did not hear available evidence challenging

the credibility of John Berrien and David Falcon. For example,

the motion alleged John Berrien provided several prior statements

to the police that were markedly inconsistent with his trial

testimony, but which the jury did not hear. Mr. Berrien

testified in a deposition less than a week before the trial that

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his statement to the police was llmostly false," except for the

told about this deposition. The motion alleged that due to Mr.

Melendez's trial attorney's failure to adequately investigate,

the jury was never told that the police coerced John Berrien to

cooperate with them by telling him: "in turn for helping you can

get off light," ll[t]he right will probably get you homefree," and

"we're gonna protect youlV (PC-Rl. 135).

The motion alleged that John Berrien's trial testimony that

he took George Berrien and Mr. Melendez to Auburndale is

inconsistent with his prior statement that either 'IBig Dave" or

'Ia Jamaican" named Taboo was the third person involved (PC-Rl.

136, 140). At trial he stated that George and Mr. Melendez were

talking in Spanish and laughing when he picked them up (R. 316-

nervous . , . Quite like, you know, like he was thinking about

somethingtl (PC-Rl. 121) and that he was "speaking English most of

and a bulge in the back of his pants (R. 311, 3291, but he had

previously stated that Mr. Melendez had a pistol but not a towel

(PC-Rl. 121). At trial, he testified that he did not see a gun

when he picked up Mr. Melendez and his cousin (R. 310-111, while

his previous statements specifically indicate that he saw the gun

when the two men got in the car (PC-Rl. 140). At trial, he

testified that when he picked them up, George was carrying

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nothing and Mr. Melendez was carrying a towel but he could not

determine whether anything was in the towel (R. 316). He had

previously stated that "there was definitely something inside the

towel" and "when they got in the car, they showed me some

jewelry" (PC-RI. 140). John Berrien testified that when he

picked up George and Mr. Melendez, there was a Cadillac parked on

but that when he dropped them off there were two cars parked on

the side, one of which was the Cadillac (R. 331). His testimony

indicates that although he saw the two cars, he saw no people

outside the school; however, he previously stated that he saw two

people pull up in a blue Camaro and blow the horn (PC-Rl. 140).

At trial, he testified that he dropped the two men-off on the

side of the road (R. 312), but he previously stated that he

dropped Mr. Melendez off at a fish market or "right at the

business" (PC-Rl. 121, 140). The first Rule 3.850 motion alleged

that had the jury been informed of these inconsistencies in John

Berrien's statements, as well as the police coercion and his

admission before trial that he had lied to the police, Mr.

Melendez would not have been convicted and sentenced to death.

The first Rule 3.850 motion alleged that trial counsel was

similarly deficient in investigating and presenting substantial

evidence impeaching Mr. Falcon. For example, the motion alleged,

Mr. Melendez's trial attorney knew the importance of the Reagan

incident but failed to seek subpoenas to ensure their appearance

at trial. As a result, when the Reagans failed at the last

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minute to appear, the jury was deprived of valuable evidence to

assist their evaluation of Mr. Falcon's credibility, as well as

that of Detective Glisson (PC-Rl. 689). The motion alleged that

Detective Glisson, who was the lead detective on the Baker case,

acted to protect Mr. Falcon and prevent the filing of charges

against him in the Reagan incident. Because this information was

not available, Detective Glisson gave the jury the impression

that Mr. Falcon was an agent working for the police on drug

investigations (R. 5631, that Mr. Reagan was a drug dealer on

whom Mr. Falcon had supplied information (R. 5671, and that the

Reagans had voluntarily signed a waiver of prosecution (R. 566).

Had the Reagans been present at Mr. Melendez's trial, their

testimony would have demonstrated that Mr. Falcon was simply a

criminal being protected by the police so that he could testify

against Mr. Melendez; specifically, Mr. Falcon had a personal

interest in testifying against Mr. Melendez in that it enabled

him to avoid prosecution for his own criminal acts (PC-Rl. 689).

The motion also alleged that due to trial counsel's neglect

to prepare for Mr. Falcon's testimony, the jury was also deprived

the opportunity to hear additional impeachment evidence from

witnesses who were present at the trial. Dorothy Rivera and Ruby

Colon knew about Detective Glisson's relationship with Mr. Falcon

but were not asked to provide this information (PC-Rl. 745, 741).

Ms. Rivera and Ms. Colon both knew that Mr. Falcon had said that

the police were paying him $5000 for his testimony against Mr.

Melendez (a.). Both knew that Mr. Falcon had received numerous

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phone calls at Ms. Colon's house and that they talked to each

other "like they were partners" (Id.). Mr. Falcon had also told

Ms. Rivera that he had tried to get away to avoid testifying

against Mr. Melendez but that the police were forcing him to

at Mr. Melendez for refusing to sell drugs for him and refusing

to help him in robberies (PC-Rl. 741).

The motion alleged that because this evidence was not

presented to the jury, Mr. Falcon was able to testify that he

implying that the amount was insignificant. The State Attorney

emphasized this point in closing argument: "Oh, he got a little

money from the Auburndale Police Department for helping them out

705). Mr. Falcon and Detective Glisson were able to present

trusted, reliable informant, rather than as "partners" involved

in a questionable relationship possibly involving criminal

activity. The motion alleged that without hearing the evidence

available through Ms. Rivera and Ms. Colon, the jury knew only

that Mr. Falcon did not like Mr. Melendez without hearing the

reason: that Mr. Melendez had refused to assist Mr. Falcon's

criminal activities. Most importantly, the jury did not know

that the police were forcing Mr. Falcon to testify. Without this

information, the jury could not understand the full significance

of the Reagan incident: that the police had something with which

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to force Mr. Falcon to cooperate in their prosecution of Mr.

Melendez.

The first Rule 3.850 motion also alleged that the State not

only failed to disclose the truth about Mr. Falcon, but it

affirmatively used his lies about his background and role as a

police informant to enhance his credibility, and that Mr.

Melendez's trial attorney failed to investigate this key State

witness. As a result, the jury that convicted and sentenced Mr.

Melendez was deprived of further information regarding Mr.

Falcon's background and motivation. Evidence was readily

available proving that Mr. Falcon was not an undercover agent in

testified at trial (PC-Rl. 426, 695). In fact, Mr. Falcon had

been convicted of a Puerto Rico murder and was released from

multiple murder (PC-Rl. 426). In addition, rather than paying

him for information as he testified, the FDLE had actually

disassociated itself from Mr. Falcon (PC-Rl. 695).

Mr. Melendez's second Rule 3.850 motion presented evidence

discovered since Mr. Melendez's trial and first Rule 3.850 motion

which establishes that Mr. James is responsible for Mr. Baker's

murder. Deborah Ciotti, a close friend of Mr. James, knew about

the drug deal/robbery that was planned for the night of September

[Vernon James] came to me a few days before

Del got killed and told me about this drug

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deal that was going down up at the beauty

school, and that he intended on taking the

money and the drugs, that he was going to rob

Mr. Del, him and a couple of his buddies.

(PC-R2. 91-2). Ms. Ciotti spoke to Mr. James again the night of

Mr. Baker's murder:

He told me that he was getting ready to go

down to the beauty school, and he asked me if

I wanted to ride along. He told me that I

wouldn't have to get out, that I could sit in

the car. And I declined. I told him I had a

prior engagement.

Vernon drove off. We were up on Hobbs Lane

in Auburndale. I was on the south end of

Hobbs, about midways down the street. And he

drove up to the corner where the stop sign

is, where it turns on Derby, about a block

and a half from the beauty school, where he

picked up two black males. They got in the

car. They turned right.

I crossed over the back side of Hobbs to New

Hope. And Vernon was driving Bobo's car at

the time, and I saw the car pull into the

beauty school.

(PC-R2. 92). Ms. Ciotti's encounter with Mr. James the next

morning provides further evidence of his involvement in Mr.

Baker's death:

previous engagement, I went back up on Hobbs.

Vernon was up there, and I approached him and

I said, well, did you get what you went for?

He didn't reply. He pulled out a wad of

money out of his pocket and unrolled this big

bag of cocaine.

(PC-R2. 93). On cross-examination, Ms. Ciotti expressed her

certainty that Mr. Melendez was not involved in Mr. Baker's

death.

A I know [Mr. Melendez] wasn't the

one involved in the robbery. I know he

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wasn't the one in the car that pulled up in

front of the studio. I know that he wasn't

the one that had the cash on him.

the two that was picked up by Vernon James if

you were unable to identify--

A Because, number one, he's not dark

enough from here. To me, he's not dark

enough to have been the man. And, second

off, if he stands up, I bet you he's about

six inches taller than the man that I saw get

into the car.

A The one of them was about my

height. The other was about three inches

taller than that.

A There was two black males. They

both got in the car, one in the front and one

in the back.

* * * *

skin color and size that this man was not one

of them?

A No. He was not.

(PC-R2. 106-07).

evidentiary hearing regarding her brother's involvement in Mr.

Baker's death:

There was rumors going around that he had

killed Mr. Del. So we was at our mother's

house, and I asked him pointblank did he do

it. And he started crying and he said no.

He said, I didn't kill him. He said, I set

up the robbery and I was there, he said, but

I didn't kill him.

(PC-R2. 127).

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appearance in court, confirms that Mr. James spoke of his

involvement in Mr. Baker's death. She also testified at the

evidentiary hearing:

[H]e would write to let me know that they was

bringing him back to Polk County to go to

court for Mr. Del's murder, and that he could

get life or the electric chair in his part of

Mr. Del's death

(PC-R2. 114). Ms. Dawson provided additional details that

indicate that Mr. James had some of Mr. Baker's jewelry that was

missing after his murder. When she and Mr. James were living

together in Auburndale in 1985, he gave her this jewelry that had

belonged to Mr. Baker:

A Well, he just brought me -- he said

that he had something for me. It was two

rings. He went out in the shed and brought

back these two rings. I didn't question him.

He just said, well, here's two rings that I

been had for a few years, I've just been

holding onto them.

* * * *

did he -- or around that time, did he mention

where the rings had come from?

A From Mr. Del, something to that

effect. Like I said, I didn't question him

because you just didn't question Vernon about

nothing.

those rings were from -- those rings used to

belong to Mr. Del?

A Yes, that's what he said.

(PC-R2. 115-16).

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Dwight Wells was John Berrien's attorney in 1984 and

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to Mr. Baker's death. Mr. Wells testified that during the seven

or eight months that he represented him on these charges, John

Berrien consistently maintained his innocence (PC-R2. 191).

However, Mr. Wells advised his client to accept the State's plea

offer because he was initially charged with first-degree murder

and faced the risk of receiving a death sentence; Mr. Wells felt

that pleading to accessory after the fact, a third degree felony,

was in the best interests of his client (PC-R2. 192).

Mr. Wells was also familiar with Mr. James because he had

represented him several times as a public defender (a.).

Sometime before Mr. Melendez's trial, Mr. James requested that

Mr. Wells visit him at the county jail; Mr. James was not

represented by the public defender's office at this time (PC-R2.

194). During this meeting, Mr. James confessed to Mr. Baker's

murder:

He told me that he was involved in the murder

of Mr. Del. He described to me in some

detail what had gone on. Mr. James shared

with me, however reluctantly, that he was

homosexual and that this had started out as

an attempt to go back to Mr. Del's place and

have some drugs and have a party. That Mr.

Del had come on to him in an overlyaggressive

way, and that's what led to the

homicide.

(PC-R2. 194-95). Although Mr. Wells was not bound by the

attorney/client privilege because he was not representing Mr.

James at this time, he did not share this information with anyone

outside his office (PC-R2. 195). He was aware of the importance

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of this information to Mr. Melendez's case but did not share it

with his trial attorney Mr. Alcott:

statements that Mr. James made to you?

A I believe I did, but I can't, as I

sit here today, tell you whether it was

personnel in the Public Defender's Office,

personnel in some other office. I really

cannot be specific about that. I obviously

knew it was important information. And1 --

if memory serves me right, I think Mr. James,

in fact, testified in some respect in Mr.

Melendez' trial. I don't know how that went

down.

important information. Why did you think

that?

A Because from my prior conversations

with John Berrien and what he was telling me

of his lack of involvement and Mr. James'

apparent knowledge of what had happened, I

thought that it was extremely important that

the people who were trying this case know

about it. But, again, I can't be specific as

to who 1 told.

about Mr. James' confession?

A I do not believe I did, no.

testify at Mr. Melendez's trial had that request been made:

you were representing Mr. Berrien and he was

representing Mr. Melendez, did Mr. Alcott

ever discuss the case with you?

A Not that I can recall, no.

had any discussion with you about the case,

would you have then related Mr. James'

statements to Mr. Alcott?

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A Certainly.

subpoenaed to appear at trial, would you have

testified at the trial of Mr. Melendez?

A Yes.

(PC-R2. 196).

Roger Alcott, Mr. Melendez's trial attorney, testified that

any evidence incriminating Mr. James in Mr. Baker's death would

have been consistent with the defense theory at trial (PC-R.

291). Mr. Alcott presented all available evidence demonstrating

Mr. James' involvement in Mr. Baker's murder; he testified about

the defense trial strategy: "we were trying to show that James

was a participant in the offense, not Mr. Melendez. And so

been something that I would have presented" (Id.). Mr. Alcott

testified that he spoke about the Baker case with Mr. Wells when

the latter was representing John Berrien; he is sure that Mr.

Wells did not disclose Mr. James' confession during these

discussions because if he had known of the confession, he would

have called Mr. Wells to testify:

had made an incriminating statement to Mr.

Wells, would you have asked Mr. Wells to

testify at Mr. Melendez' trial?

A It probably -- and I say that

than the inmate who was in the cell with Mr.

James. And what I was trying to prove was

that James had made a prior, you know,

incriminating statement, you know, against

his own penal interest. And so, you know, I

was trying to prove that through, in this

particular case, an inmate from the cell.

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And if I could have proven that through

Dwight Wells, it would have made it a little

more credible.

(PC-R2. 297). Mr. Wells, who had no reason to withhold this

information from Mr. Melendez's attorney, testified that he would

have shared this information with Mr. Alcott if a request for

information had been made (PC-R2. 196) b

The second Rule 3.850 motion also presented evidence that

Mr. Berrien was threatened by the police to secure his

cooperation in the prosecution of Mr. Melendez. He discussed the

first interview with the police which was conducted by five

officers in the middle of the night at the Lakeland Police

Department. He recalled that he initially told the police that

he knew nothing about Mr. Baker's murder (PC-R2. 144). Agent

Roper confirmed that John Berrien was picked up for questioning

in the very early morning hours of March 7, 1984, after Agent

Roper's late night meeting with Mr. Falcon (PC-R2. 246) e He also

admitted at the evidentiary hearing that the police had

discussions with John Berrien that were excluded from the tape

recording of the interview: "We had discussed with Mr. Berrien

about the murder and that we were investigating a murder and that

his vehicle was suspect, and I'm sure that Juan Melendez was

suspect. I don't recall word for word what we talked about.

That was prior to his statement when he made this statement, as

you can see here" (PC-R2. 251). Finally, Agent Roper testified

that he heard the "clicks" on the tape when it was played in

court, corroborating Mr. Berrien's memory of the manipulation of

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the tape recording (PC-R2. 248-49). Although Agent Roper claimed

what we needed to ask Mr. Berrien" (PC-R2. 2491, his crossexamination

a question and answer, suggesting that Mr. Berrien was being told

how to answer:

tape?

A Yes, I did.

let's just see. There's a point on the tape

where Mr. Berrien is being asked about the

friend that Juan Melendez or Faison was

supposedly going to see that evening.

You asked: Do you have any idea exactly

where that friend lives?

Mr. Berrien responds: No, I have never

been there.

Detective Knapp asks: Have you ever

seen him running around with that friend or

anything, and there's a click.

Did you hear that click?

A I probably did. I heard the

clicks.

asking Mr. Berrien about the towel. You

asked: What did it look like?

Mr. Berrien responded: It looked like

it was about like that, about ten inches

around.

You respond: About ten inches, and

okay. And then there's a click

- excuse me. Detective Knapp was asking Mr.

Berrien about whether or not Faison had a

gun. Detective Knapp asked: But he did have

a gun with him?

Mr. Berrien says: Yeah.

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gun?

Detective Knapp says: And you saw the

And you say yeah. And there's a click.

Did you hear that click?

A I heard all the clicks.

(PC-R2. 247-49).

John Berrien also described his March 15, 1984, interview

with Detective Glisson and Sergeant Knapp of the Auburndale

Police Department:

A This was in Auburndale. They was

telling -- they said that someone told them

that I was involved in killing Mr. Del. And

they wanted me to -- they threatened me.

what happened. They told me that it was --

that I had planned -- we had planned this

murder and that I knew all about it and that

I was going to get a cut of the money.

use?

A Well, they told me not to end up

like Mr. Del?

A Yes.

(PC-R2. 57-8). John Berrien's memory of a meeting with Detective

Glisson at the county jail is consistent with Mr. Falcon's trial

testimony that he accompanied Detective Glisson on this

interview:

I remember them, they had a friend -- they

had this dude with them that said Melendez,

said that he did it, told me to go ahead,

man, you're all right, help them out. They

said Melendez already confessed to doing it.

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And that's when I told them -- I told them

that I dropped my cousin George off with

Melendez all the time.

(PC-R2. 158). John Berrien's testimony at the evidentiary

hearing also reveals that his statements implicating Mr. Melendez

their initial interviews:

A They had me -- they had this tape.

They was making this tape. They would tell

me what they wanted me to say. Then if I

made a mistake, they would stop the tape.

day I was supposed to have been in

Auburndale, on what day it was supposed to

have been. And they was -- also about the --

something about a -- how he was supposed to

have killed and stuff like that.

time of day that you supposedly had dropped

Juan Melendez off?

A Yes.

A As I recall, it was around 4:00,

4:30.

have any time of the week or any time -- any

specific date in mind?

don't recall the exact day it was.

September?

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A Oh, yes, it was in September.

that this --

A That on this certain day in

September, that I dropped Juan Melendez off

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and he was 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

I took him to -- back to Lakeland.

A No.

were involved in the murder of Mr. Del?

A I was not involved in the murder of

Mr. Del.

robbery or planned robbery of Mr. Del?

A No, I did not.

get a cut out of the robbery?

A No.

* * * *

statement, where it says that you saw Juan

Melendez give George two rings, a watch, and

a gun --

A I was told that.

A By the officers.

A Yeah, what was taken from Mr. Del.

you ever see Juan Melendez give George

Berrien two rings?

A No, I never saw it.

George Berrien a watch?

A No.

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A No.

a . 38 pistol?

A No.

from?

A The Auburndale Police Department.

turning the tape on and off, exactly how did

that work?

A They would tell me what they wanted

me to say. They were saying they were going

to help me if I would go ahead on and just

make this statements for them. So as they

would say what they wanted me to say, they

would have me to say it on the tape. But

after they finished the tape, then they

locked me up for first degree murder and

strong-armed robbery.

(PC-R2. 138-40).

John Berrien's testimony at Mr. Melendez's trial was based

on the lies that he was forced to adopt in this initial

interview:

Melendez' trial, did you know what the police

A Yes, they was not -- I was not

supposed to be sentenced until after I

testified at the trial.

that they wanted you to say that you had

dropped Juan off around 4:00?

A Yes.

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to say that you had dropped Juan off during

the week, versus the weekend?

A During the week.

to say during the trial that you -- that you

had saw Juan Melendez give George Berrien two

rings?

A Yes, I was told to say that.

also told to say that you saw Juan Melendez

give Berrien a gun and a watch?

A Yes.

(PC-R2. 141) a

On cross-examination, John Berrien revealed the many lies he

told at Mr. Melendez's trial. This false testimony was coerced

by the State when Auburndale police officers told John Berrien

what they wanted him to say to help them convict Mr. Melendez.

John Berrien lied when he testified that he had seen Mr. Melendez

with . 38 caliber pistols in the past (PC-R2. 163) and that he had

Baker's school (PC-R2. 172); the police told him to give this

answer (PC-R2. 163, 172). He also lied when he testified that

he said this because the police had told him to say that Mr.

Melendez had Mr. Baker's jewelry in a towel (PC-FL?. 167). He

lied when he testified that at the train station Mr. Melendez

Delaware; he told this lie because the police had told him what

was stolen from Mr. Baker (PC-R2. 171, 173).

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Mr. Berrien explained his motivation for lying at Mr.

Melendez's trial:

A I hadn't been sentenced yet, so I

just assumed that they wanted me to say this.

that?

A Right. I still hadn't been

sentenced myself, and that was one of the

stipulations of my sentencing, that I

testify.

testify truthfully, wasn't it?

A It just said testify.

testify truthfully?

A They told me to testify. They

wasn't going to sentence me until after I

testified in the Melendez trial.

said?

A At the time, yes.

(PC-R2. 171-72).

testified falsely about the -- seeing Juan

Melendez give George Berrien two rings, a

watch, and a gun.

A Uh-huh.

concerning those?

taken.

talk to you, you pretty much told them what

you thought they wanted to hear?

A Yes +

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contradictions in your statements it's really

-- it's out of the fact that you was just

telling the police what they -- what you

thought they wanted to hear?

A Yes.

convict Juan Melendez?

A Yes.

state, you knew that your job was to say

things that would convict Juan Melendez?

A I said what I thought they wanted

(PC-R2. 183-84).

Roger Alcott, Mr. Melendez's trial attorney, testified to

the importance of John Berrien's testimony to the State's case

against Mr. Melendez because it implicated Mr. Melendez in Mr.

Baker's death and also corroborated the testimony of the State's

other key witness, David Falcon (PC-R2. 288-89). Because John

the unreliability of his testimony would have been helpful to the

defense (PC-R2. 288); Mr. Alcott would have used any such

evidence had it been available to him to challenge Mr. Berrien's

truthfulness (PC-R2. 290).

Dr. Richard Ofshe, a social psychologist specializing in

false memories, police interrogation techniques, and coerced

confessions, testified for Mr. Melendez at the evidentiary

hearing. After examining transcripts and other materials in Mr.

Melendez's case, particularly those concerning John Berrien's

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testimony and statements to the police, Dr. Ofshe offered his

expert opinion on the police interrogation techniques used in

this case. He testified that the police used threats and control

to obtain statements from Mr. Berrien and that the police

intentionally sought an incriminating statement in order to gain

control over Mr. Berrien so that he would be forced to cooperate

in their prosecution of Mr. Melendez (PC-R2. 316-17).

Dr. Ofshe testified that he had found evidence in the record

to support Mr. Berrien's testimony at the evidentiary hearing

that the police threatened him during the interrogation (PC-R2.

320, 356). In addition, he noted that even without Mr. Berrien's

repudiation of his own testimony, the unreliability of his

testimony was obvious from his statements alone: "the series of

interrogations themselves show so much variability that one would

The fact that Mr. Berrien's statements about the threats and

coercion were corroborated in the transcripts of his interviews

led Dr. Ofshe to believe Mr. Berrien rather than the police

officers who deny that threats or coercion were employed (PC-R2.

356-57) m Dr. Ofshe's review of Mr. Berrien's statement revealed

eighteen different points that changed substantially over the

course of the series of statements (PC-R2. 323-28). When asked

to explain the occurrence of inconsistencies in a subject's

statements, Dr. Ofshe responded: "Well, the simplest way to

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account for them is that this is a story that is being made up in

response to coercion" (PC-R2. 327).

Berrien expressed concern that he might get himself in trouble

and was reassured that he could avoid this by helping the police

(PC-R2. 330). Dr. Ofshe noted that a subject need only be

threatened once with death or incarceration in order for the

coercive effect of the threat to pervade and taint the entire

interview (PC-R2. 331, 350). Dr. Ofshe was asked his opinion on

the interrogation procedures used during the interviews with Mr.

Berrien:

Well, my opinion is that it not only could

have produced a false coerced statement, I

think the entirety of the record, including

Mr. Berrien's latest testimony, together with

his testimony prior, together with the facts

that are contained in the record, supports

the conclusion that -- that this is not only

a coerced statement, but is also a statement

that is contrary to the facts, could be

classified as grossly unreliable, and to put

it in simple English, false.

(PC-R2. 332). Dr. Ofshe also testified on cross-examination that

Mr. Berrien's testimony at the evidentiary hearing is far more

likely to be reliable than his trial testimony (PC-R2. 349-50).

Mr. Melendez presented evidence demonstrating that the

testimony of Deborah Ciotti, Janice Dawson, Sandra James, Dwight

Wells and John Berrien was unavailable previously to postconviction

counsel and thus was newly discovered. Harun Shabazz,

an attorney at Capital Collateral Representative assigned to Mr.

Melendez's case, directed and conducted the investigation on the

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case (PC-R2. 186). Consistent with CCR policy, Mr. Melendez's

case was reinvestigated in 1993 and 1994 when a federal habeas

investigation was to locate John Berrien (Id.). Brook Hunt, a

CCR investigator, spoke with John Berrien's family numerous times

in an attempt to determine his whereabouts (PC-R2. 186-87). The

Berrien family was unable to provide any information the first

several times that Mr. Hunt questioned them; however, on one

possibly incarcerated in New Mexico (PC-R2. 187). Mr. Hunt

thereafter located John Berrien in a New Mexico jail, and Mr.

Shabazz interviewed him (Id.).

Donna Harris, a former CCR investigator assigned to Mr.

Melendez's case in 1988 and 1989, also testified about the

efforts to find John Berrien. At that time, Ms. Harris sent

public records requests to the following agencies in an attempt

to locate Mr. Berrien: Polk County Jail; Florida Department of

Law Enforcement; Polk County State Attorney's Office; the

Auburndale Police Department; the Polk County Sheriff's

Department (PC-R2. 207). Although Ms. Harris received records in

response to these requests, they were not helpful in determining

Mr. Berrien's present location (PC-R2. 209). Ms. Harris also

interviewed Ginny Berrien, Mr. Berrien's wife, and Ruby Collins,

his sister-in-law, in unsuccessful efforts to locate him (rd.).

Ms. Harris was unable to determine Mr. Berrien's whereabouts at

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the time that Mr. Melendez's first Rule 3.850 motion was filed

(Id.).

Ms. Harris also attempted to locate Mr. James because of his

requests to the following agencies: Winter Haven Police

Department; Polk County Sheriff's Office; Auburndale Police

Department; Polk County State Attorney (PC-R2. 210). The records

received in response to these requests did not assist Ms. Harris

in locating Mr. James (rd.). Ms. Harris learned that Mr. James

had been murdered, and when she requested records relating to his

therefore unable to obtain any records (PC-R2. 211-12). Ms.

Harris was unable to locate any evidence relating to Mr. James'

involvement in Mr. Baker's murder at the time Mr. Melendez's

evidentiary hearing were discovered after Mr. Shabazz received

the Vernon James murder file which was unavailable until 1994

Sandra James; CCR was able to locate both potential witnesses

because Ms. Dawson was working in Auburndale and Ms. James was

incarcerated at Florida Correctional Institution (a.). When Ms.

Ciotti might have additional information about her brother; Ms.

Ciotti was incarcerated at the same facility and met with the CCR

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The circuit court denied relief under the standard of Jones

v. State, 591 so. 2d 911 (Fla. 19911, and under Brady v.

Maryland, 373 U.S. 83 (1963)(PC-R2. 426-28). The court did not

address Mr. Melendez's allegations that trial counsel provided

ineffective assistance.

Evidence previously unavailable to post-conviction counsel

establishes that Mr. Melendez is innocent of the offense for

which he was convicted and sentenced to death. This evidence

entitles Mr. Melendez to a new trial and sentencing. At the

evidentiary hearing, Mr. Melendez presented evidence that Vernon

James made numerous statements implicating himself in Mr. Baker's

death. Mr. James' confessions are corroborated by witnesses who

and jewelry belonging to Mr. Baker. This evidence raises a

result in his acquittal on retrial.

The circuit court denied relief, ruling that the witnesses

presented by Mr. Melendez were not credible and that their

testimony would not have changed the verdict. The circuit court

Melendez's witnesses and the record does not contain evidence in

support of this finding, An evaluation of the newly discovered

evidence, in the context of the record as a whole, demonstrates

that Mr. Melendez has met the standard established by this Court

in Jones v. State.

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The second aspect of Mr. Melendez's innocence claim is that

he was denied an adversarial testing at his trial due to State

misconduct and his trial counsel's ineffectiveness. As a result,

valuable evidence supporting his innocence claim was not

presented to the jury that convicted Mr. Melendez and sentenced

him to death.

Finally, the circuit court failed to evaluate the cumulative

effect of all the evidence discovered since Mr. Melendez's trial

-- that which is newly discovered, that which was withheld by the

State, and that which was not presented due to trial counsel's

ineffectiveness. Mr. Melendez is entitled to a new trial.

ARGUMENT I

PREVIOUSLY UNAVAILABLE EVIDENCE ESTABLISHES

THAT MR. MELENDEZ'S CONVICTION AND DEATH

SENTENCE ARE UNRELIABLE AND THAT HE IS

THEREFORE ENTITLED TO A NEW TRIAL AND

SENTENCING.

Assessment of Mr. Melendez's claims must be conducted in

light of the record as a whole. On direct appeal, the weakness

of the State's case at trial elicited the concern that this may

be a case where Ita 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." Melendez v. State, 498 So. 2d

1258, 1262 (Fla. 1986) (Barkett, J., concurring specially).

Absolutely no physical evidence connected Mr. Melendez to the

murder of Delbert Baker. In light of the weakness of the State's

case at trial, the evidence presented below shows that Mr.

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miscarriage of justice and cannot be allowed to stand.

The State's theory at trial was that Mr. Melendez, John

Berrien, and George Berrien rode in John Berrien's car to the

victim's hairdressing salon in the late afternoon of September

13, 1983. John Berrien dropped off Mr. Melendez and George

the victim, and then were driven home by John Berrien. According

to the State's theory, George Berrien slit the victim's throat

and Mr. Melendez shot the victim in the head. The next day,

according to the State, John Berrien drove George Berrien and Mr.

Melendez to the train station, where George Berrien boarded a

train for Wilmington, Delaware, At the train station, Mr.

Melendez purportedly handed George Berrien some jewelry and a gun

which George Berrien was supposed to sell in Delaware.

This theory rested solely on the testimony of John Berrien

and David Luna Falcon. John Berrien testified that he drove Mr.

Melendez and George Berrien to Auburndale and later took George

to the train station where Mr. Melendez handed George jewelry and

a gun to sell in Delaware.3 David Falcon testified that Mr.

3The jury never heard about John Berrien's prior

inconsistent statements to police nor about his deposition

testimony where he said his statements to police were "mostly

false."

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Melendez made a statement inculpating himself in the murder.4

The only other evidence which tended to support the State's

taken a train to Wilmington, Delaware, on September 14, 1983. No

physical evidence connected Mr. Melendez to the victim's death or

supported the State's theory regarding his participation in the

offense. George Berrien was never charsed with any offense,

although he testified at trial as a defense witness and thus was

certainly available to the authorities, and although the State

argued at trial that he was "equally guiltyt' and "equally

involved . . . in committing the murder" (R. 786-87).

Other evidence at trial contradicted the State's theory.

Franklin Brown, a State witness who worked at the victim's shop

and knew John and George (R. 278-79), testified that he worked on

the day of the victim's death until 5:lO or 5:1.5 p.m. (R. 2811,

and did not see John or George that day (R. 283) m Dorothy

Rivera, Mr. Melendez's girlfriend, testified that she was with

Mr. Melendez on September 13, 1983, from 5:00 p.m. until the next

morning (R. 486-87). Ms. Rivera remembered that date because it

was her first wedding anniversary and her husband was in

Pennsylvania (R. 484). Mr. Melendez had been at Ms. Rivera's

4The jury never heard evidence showing, inter alia, that

David Falcon was not a trustworthy undercover agent for the

Justice Department as he portrayed himself, but a common criminal

and murderer, was not a regular informant for Agent Roper as he

portrayed himself, and was being protected by Detective Glisson

for his actions in a shooting at the home of a family named

Reagan. See Mr. Melendez's Motion to Vacate, filed 1/16/89, pp.

55-56; Supplement to Motion to Vacate, filed 4/21/89, pp. 69-85.

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sister's house when Ms. Rivera arrived there at 3:00 p.m. (R.

499). Marie Graham, Ms. Rivera's sister, testified that Mr.

Melendez was with her sister on September 13, 1983 (R. 502).

Terry Barber, who knew the victim and was interviewed by police

at the time of the victim's murder (R. 569), testified that he

went to the victim's shop between 5:00 and 6:30 p.m. on September

13, 1983 (R. 571). He saw the victim at about 5:45 or 5:50 p.m.

(R. 572). Two other people who Barber thought were Vernon James

left the shop about 6:15 p.m. (R. 577). Barber testified that he

had never seen Mr. Melendez before (R. 579). Roger Mims, a jail

James had admitted participating in the victim's murder (R. 634-

35), and had said that Mr. Melendez had nothing to do with the

murder (R. 635). John Knapp, a police investigator, testified

that Vernon James and Bobo were suspects in the victim's death

(R. 648). George Berrien testified that he had nothing to do

with the victim's death (R. 655), and had never ridden in a car

with Mr. Melendez to Auburndale (R. 657).

At the evidentiary hearing, Mr. Melendez's trial counsel,

Roger Alcott, testified that John Berrien's testimony was helpful

David Falcon's testimony, and that evidence showing John

Berrien's testimony was not believable would have been material

to the defense. Mr. Alcott also testified that part of his

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and that he presented the evidence available to him to support

this theory. Mr. Alcott testified that other evidence

implicating Vernon James in the murder would have been consistent

with the defense theory and would have been presented had it been

Not only must the Court consider Mr. Melendez's claims in

light of the record as a whole, but also the Court should

consider the cumulative effect of the evidence which the jury

never heard. As this Court held in State v. Gunsbv, 670 So. 2d

920 (Fla. 1996), a combination of Bradv violations, ineffective

prejudice sufficient to require granting relief. There, the

Court ordered a new trial based upon the combined effect of Bradv

violations, newly discovered evidence, and ineffective assistance

of counsel. Therefore, although the facts underlying Mr.

Melendez's claims are raised under alternative legal theories --

counsel -- the cumulative effect of those facts in light of the

record as a whole must be nevertheless be assessed.

In the Brady context, the United States Supreme Court has

explained that the materiality of evidence not presented to the

jury must be considered "collectively, not item-by-item." Kvles

whether "the favorable evidence could reasonably be taken to put

confidence in the verdict." Id. at 1566 (footnote omitted). In

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the ineffective assistance of counsel context, the United States

Supreme Court has explained that the same totality of the

circumstances approach applies:

[Al court hearing an ineffectiveness claim

must consider the totality of the evidence

before the judge or jury. Some of the

factual findings will have been unaffected by

the errors, and factual findings that were

affected will have been affected in different

ways. Some errors will have had a Dervasive

effect on the inferences to be drawn from the

evidence, alterinq the entire evidentiarv

picture, and some will have had an isolated,

trivial effect. Moreover, a verdict or

conclusion only weakly suworted bv the

record is more likely to have been affected

bv errors than one with overwhelmins record

support.

Strickland v. Washinqton, 466 U.S. 668, 695-96 (1984)(emphasis

added).

The Supreme Court had previously described the totality of

the circumstances analysis as follows:

committed. This means that the omission must

be evaluated in the context of the entire

record. If there is no reasonable doubt

about guilt whether or not the additional

evidence is considered, there is no

justification for a new trial. On the other

hand, if the verdict is already of

questionable validitv, additional evidence of

relatively minor importance miqht be

United States v. Aqurs, 427 U.S. 97, 112-13 (1976) (emphasis

added) (footnote omitted).

In the newly discovered evidence context, this Court has

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of both the newly discovered evidence and the evidence which was

introduced at the trial." Jones v. State, 591 So. 2d 911, 916

(Fla. 1991). When these principles are applied to Mr. Melendez's

claims, his entitlement to relief is clear.

Evidence that Vernon James has confessed to the crime for

which Mr. Melendez was convicted and that key State witness John

Berrien lied to convict Mr. Melendez creates a reasonable doubt

regarding his guilt and certainly undermines confidence in the

outcome of the trial. Mr. Melendez is entitled to a new trial.

In the circuit court, Mr. Melendez presented unrefuted

evidence establishing that the testimony of Janice Dawson, Sandra

previously available to Mr. Melendez's post-conviction counsel.

Post-conviction counsel was not previously able to locate Ms.

Dawson, Ms. James, Ms. Ciotti or Mr. Berrien. Before locating

Mr. Berrien, Mr. Melendez's post-conviction counsel was unable to

talk to Dwight Wells because any such discussion required a

release from Mr. Berrien. Before obtaining that release and

speaking to Mr. Wells, post-conviction counsel had no reason to

suspect Mr. Wells had any information regarding Vernon James.

The State did not contest this evidence and did not argue that

these witnesses could have been discovered earlier by postconviction

counsel. Rather, the State argued that some of these

witnesses were available to trial counsel. The circuit court

found that Deborah Ciotti, Sandra James and Dwight Wells were

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available to trial counsel. Mr. Melendez argued that if the

witnesses were available to trial counsel, then counsel provided

ineffective assistance in failing to investigate and present

their testimony. Gunsby v. State, 670 So. 2d 920 (Fla. 1996).

Trial counsel's ineffectiveness is discussed in Argument III,

infra.

In the lower court, Mr. Melendez presented four witnesses

who testified that Vernon James confessed to participating in Mr.

Baker's murder. Mr. Melendez also presented John Berrien, who

testified that his trial testimony against Mr. Melendez was

false. These witnesses' testimony contradicted the State's

theory at Mr. Melendez's trial and supported the defense trial

theory. Individually and cumulatively, this testimony entitles

Mr. Melendez to a new trial.

In regard to Ms. Ciotti, Ms. Dawson, and Ms. James, the

circuit court considered the content of their testimony that Mr.

James had confessed his involvement in Mr. Baker's death. The

court made the following summation of these confessions:

asked James if he did it and he responded by

showing her some money and drugs. He never

told her he killed the victim.

* * * *

On many occasions James told [Ms. Dawsonl

that he had been involved in the murder.

Indeed, he used to brag about it to other

people in the neighborhood. But he never

said that he murdered the victim nor did he

say who had committed the murder.

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[Ms. James] 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.

(PC-R2. 426). Because Mr. James did not explicitly state in

these confessions that he had killed Mr. Baker, the court found

them insufficient to warrant a new trial (a.). Clearly, the

court applied a higher standard than that required by this

Court's opinion in Jones and failed to evaluate the cumulative

effect of all the evidence. Even if Mr. James did not admit to

being the actual killer, his confessions to being present at and

involved in the murder are absolutely contrary to the State's

theory at Mr. Melendez's trial, exclude Mr. Melendez from any

participation, and support the defense theory at trial. Thus,

Mr. James' confessions create substantial reasonable doubt which

would probably have produced an acquittal.

The court stated that Mr. Wells' testimony did not meet the

Jones standard. However, an evaluation of this testimony, in the

Jones standard. At trial, Mr. Melendez presented Mr. Mims, the

cellmate to whom Mr. James confessed, to support the defense

theory that Mr. Melendez was innocent. As Mr. Alcott testified

at the evidentiary hearing, presenting a corroborating witness to

whom Mr. James had also confessed, especially an attorney who

would have greater credibility than an inmate, would have

strengthened the defense case. This evidence is not merely

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cumulative because it reinforces the credibility of a defense

witness whom the State tried to impeach.

The circuit court also denied relief because the jury

rejected the defense theory at trial that Vernon James committed

the offense (PC-R2. 427). However, this evidence is all the more

significant because it is consistent with the defense trial

theory. New evidence supporting an old fact or theory is still

new evidence and cannot simply be dismissed as cumulative.

Establishing a fact or theory requires a certain quantum of

evidence, and thus new evidence can add weight to an old fact or

theory and make it more likely that the fact or theory is true.

Thus, a claim cannot be dismissed simply because a similar

allegation was made in the past. In Jones v. State, 591 So. 2d

911 (Fla. 19911, the defendant proffered new evidence that one

Schofield really committed the murder at issue. The State argued

that this evidence was not new because the defendant previously

that argument and ordered an evidentiary hearing. Similarly, in

Scott v. State, 657 So. 2d 1129 (Fla. 1995), the defendant argued

that new evidence showed his codefendant was the real killer.

The State argued the evidence was not new because the defendant

had always said the codefendant was the triggerman. Again, this

Court rejected that argument and ordered an evidentiary hearing.

The standard announced by this Court in Jones does not

require a defendant to present conclusive evidence of another's

guilt; rather, the standard to grant a retrial is that the newly

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I)

I)

defendant's guilt. To produce an acquittal, evidence must simply

raise a reasonable doubt. It is not necessary that the evidence

negate every bit of the State's evidence. Compare Hallman v.

State, 371 so. 2d 482 (Fla. 19791, with Jones, sunra (receding

from Hallman standard). Here, the new evidence of Vernon James'

inculpatory statements in conjunction with the evidence at trial

that Mr. Melendez had an alibi, that Terry Barber saw Vernon

James at the victim's shop near the time of the murder, that

Vernon James confessed to Roger Mims, and that George Berrien

testified he was not involved in the murder establishes a

probability of an acquittal. Clearly, the evidence presented at

the evidentiary hearing, when considered individually or

cumulatively and compared to the State's weak evidence at trial,

In addition, the fact that Mr. James has made several

independent confessions, those presented at the evidentiary

hearing and that previously presented at Mr. Melendez's trial,

makes each of those confessions more reliable and trustworthy.

Chambers v. Mississippi, 410 U.S. 284 (1973). In Chambers, the

Supreme Court recognized the corroborating effect of multiple

confessions, noting that ll[t]he sheer number of independent

confessions provided additional corroboration for each" 410 U.S.

at 300. The defendant in that case sought to introduce three

confessions made by another man to three different friends. The

issue before the Court was the admissibility of hearsay not

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within an exception, but the analysis was similar to that before

the circuit court regarding Mr. Melendez's newly discovered

evidence: the issue is the reliability of the confessions

themselves.

In addition to Mr. James' confessions, Mr. Melendez

witness has recanted his testimony that secured the State's

conviction of Mr. Melendez. Relief should be granted based on a

State witness's recantation ~~[o]nly when it appears that, on a

new trial, the witness's testimony will change to such an extent

as to render probable a different verdict." Armstrons v. State,

642 So. 2d 730 (Fla. 1994). The circuit court failed to evaluate

required by this Court's precedent. The State's case against Mr.

there was no physical evidence connecting Mr. Melendez to the

crime. Mr. Alcott attempted to impeach this witness at trial but

the State's misconduct deprived him of the information necessary

to do so effectively.5 Regardless of whether other impeachment

evidence was available and failed to persuade the jury, courts

have recognized the greater effect of an actual recantation. In

Cammarano v. State, 602 So. 2d 1369 (Fla. 5th DCA 19921, the

court noted that the defendant had already tried to impeach a

State's witness with the testimony of other witnesses and the

'Mr. Alcott also failed to use Mr. Berrien's previous

inconsistent statements as impeachment, as was raised in Mr.

Melendez's first Rule 3.850 motion.

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witness's confession to another inmate that he had lied at

Cammarano's trial. Nevertheless, the court was willing to

consider new evidence that the witness had recanted because of

its greater effect: II [Aldmissions or confessions are fraught

with credibility problems. They are mere chaff in the wind by

comparison to the key witness, himself, now recanting his

testimony." rd. at 1371.

In denying relief, the circuit court noted that "attacking

[Mr. Berrien's] 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 jury

apparently believed him" (PC-R. 426). First, the circuit court

was clearly wrong that the jury had heard about Mr. Berrien's

never informed about those statements or about Mr. Berrien's

deposition testimony that most of what he had told police was

false. Thus, the circuit court's analysis rests on an incorrect

factual premise. Further, the court's conclusion that Mr.

Berrien's recantation was merely cumulative to the evidence

available to the defense at trial ignores the persuasive effect

it would have on a jury and downplays its effect on Mr.

Melendez's newly discovered evidence claim. In addition, the

testify against Mr. Melendez, evidence which lends further

support to Mr. Melendez's innocence claim and corroborates Mr.

James' confessions.

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C. THE CIRCUIT COURT INCORRECTLY FOUND THAT THE TESTIMONY OF

FOUR OF MR. MELENDEZ'S WITNESSES WAS NOT CREDIBLE

The circuit court stated that four of Mr. Melendez's five

witnesses were incredible (PC-R. 426). The court explicitly

stated that Mr. Berrien was "completely unbelievable" (PC-R.

427). However, the court did not explicitly state that either

Ms. Ciotti, Ms. Dawson, or Ms. James were incredible. The court

did note that Ms. Ciotti was a prostitute and drug addict at the

time of Mr. Baker's murder and that Ms. James was a drug addict

thirty-year prison sentence. However, the court did not cite any

legitimate reasons for finding the testimony of these witnesses

incredible and made no mention of Ms. Dawson's credibility.

Although it is within the trial court's discretion to reject

a witness's testimony if it finds that witness unworthy of

belief, the circuit court in this case did not provide a

legitimate basis for its conclusions and the record does not

contain sufficient evidence to support this finding. In Parker

v. State, 641 So. 2d 369 (Fla. 19941, the circuit court rejected

deputy shoot the victim; the court found the testimony

"inconsistent, incredible, uncredible, and unworthy of belief."

641 So. 2d at 376. This Court upheld that decision, noting that

the witness's testimony was contradicted by facts, such as the

victim's clothes and the physical description of the deputies,

that were not in dispute.

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The testimony presented by Mr. Melendez is not plagued by

very close to Mr. James and do not know Mr. Melendez; therefore,

they had no motive to lie to help him. Their testimony is

consistent with evidence presented at Mr. Melendez's trial: Mr.

with Mr. Baker shortly before the latter's death; Mr. Mims

testified that Mr. James confessed to killing Mr. Baker; a

detective testified that Mr. James was the original suspect; a

detective testified that Mr. Landrum was questioned; and a

detective testified that Mr. Landrum's sneakers matched the

bloody footprints at the crime scene. In addition, Mr. James'

confessions are corroborated by his possession of drugs and money

the morning after the crime and his possession of Mr. Baker's

jewelry which he later gave to Ms. Dawson. Although Ms. Dawson

court in its order, the fact that he had Mr. Baker's jewelry

indicates that he was not merely bragging about his involvement

in the crime.

In regard to Mr. Wells, the court first noted that his

memory of his discussions with Mr. James was "extremely sketchy":

During these visits [with Mr. James], Wells

claims that James confessed to the murder for

which Melendez and Barrien [sic] were

charged. Wells' memory of these confessions

is extremely sketchy. He made no notes and

did not tape any of the confessions. He is

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not sure of the dates when these confessions

were given but does remember that they

occurred during the time he was representing

Barrien [sic]. He doesn't recall if he ever

mentioned these confessions to Roger Alcott,

Melendez' attorney. He doesn't remember if

he contacted the State Attorney to inform him

that innocent men, including his client, had

been indicted. He thinks he may have

mentioned the confessions to his client but

is not sure.

(PC-R. 427). The court registered its suspicion that these

conversations never occurred because Mr. Wells neither took notes

nor taped Mr. James' confessions. However, his neglect to do so

seems less suspicious when one remembers that Mr. Wells was not

representing Mr. James when he visited him at the jail; he

testified that Mr. James trusted him because of their past

attorney/client relationship and sought to speak with him as a

friend; this was not an attorney/client interview at which one

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would expect Mr. Wells to take notes.

The court further stated that Mr. Wells' story that he

advised his client to accept the State's plea in exchange for

"inconceivable." However, Mr. Wells testified that Mr. Berrien

was facing the possibility of the death penalty and the plea

arrangement was in his best interests. Mr. Berrien confirmed Mr.

accessory after the fact, Mr. Berrien replied: "Yes. That's

what my lawyer told me the best thing for me to do, to accept

that, because he didn't know what would happen down the line"

(PC-R. 64).

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Finally, the court noted that the physical evidence at the

crime scene contradicted the story that Mr. James told Mr. Wells.

Mr. Wells summarized Mr. James' confession:

He told me that he was involved in the murder

of Mr. Del. He described to me in some

detail what had gone on. Mr. James shared

with me, however reluctantly, that he was

homosexual and that this had started out as

an attempt to go back to Mr. Del's place and

have some drugs and have a party. That Mr.

Del had come on to him in an overlyaggressive

way, and that's what led to the

homicide.

(PC-R. 194-95). Mr. James' confession is not contradicted by the

version of Mr. Baker's murder is consistent with the trial

testimony concerning the manner of death and the crime scene

evidence.

Dr. Drake, the medical examiner, testified at the trial that

he tested for sexual activity because "the fact that the body was

and the general circumstances and things like that would make you

think that there were perhaps some relationship to some

homosexual activity" (R. 357). The police who examined the crime

scene confirmed that Mr. Baker was dressed only in socks and

underwear when he was killed (R. 369). The fact that the autopsy

6The circuit court judge had not read the trial transcript

at the time of the hearing (PC-R2. 297), although he indicated an

intent to do so (PC-R2. 304). However, the errors regarding the

trial record contained in the circuit court's order indicate that

the judge did not review the trial record or the previous postconviction

record.

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supports Mr. James' confession that he acted in response to

aggressive sexual advances and that he killed Mr. Baker to

prevent unwanted sexual activity.

Sergeant Knapp testified at the trial that their

investigation revealed that Mr. Baker met men at his beauty

school after business hours to have sex (R. 383). In addition,

Deborah Ciotti testified at the evidentiary hearing that Mr.

James supplied Mr. Baker with drug connections (PC-R. 95) and

would recruit young men to have sex with Mr. Baker at the beauty

school (PC-R. 91). Ms. James testified at the evidentiary

hearing that Mr. Baker and her brother were lovers in a

"prostitute relationship" (PC-R. 127) and that she would

sometimes drive her brother to the beauty school and he would

come out with money (PC-R. 130). Finally, Mr. Barber testified

at the trial that he saw Mr. James in the back room of the beauty

school after business hours on the night of Mr. Baker's death (R.

575) *

The circuit court incorrectly found that the physical

evidence contradicted Mr. James' confession when, in fact, the

crime scene evidence and testimony about Mr. Baker's drug and

sexual activity confirm every aspect of Mr. James' confession to

Mr. Wells. Mr. Wells' testimony was credible and it should have

been considered as newly discovered evidence for its effect on

Mr. Melendez's trial.

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The court found Mr. Berrien "completely unbelievable,"

noting that he was currently incarcerated in New Mexico and had a

"transparent motive" to lie to help Mr. Melendez. However,

consideration of the newly discovered evidence in the context of

the evidence as a whole, including that presented at Mr.

motive to lie at the trial but no conceivable motive to lie at

the evidentiary hearing. The court also noted that Mr. Berrien

was vague about what parts of his testimony he was recanting.

However, his hearing testimony clearly and consistently indicates

exactly what parts of his trial testimony he recanted. On direct

examination, Mr. Berrien testified that the police gave him the

following information that they wanted to use against Mr.

Melendez: that Mr. Berrien and Mr. Melendez had planned the

robbery and that Mr. Berrien expected to get a share of whatever

was stolen (PC-R2. 137); the time and date on which he took Mr.

Melendez to Mr. Baker's beauty school (PC-R2. 138); and that he

saw Mr. Melendez give George Berrien two rings, a watch, and a

gun (PC-R2. 139). On cross-examination, the State Attorney

reviewed Mr. Berrien's trial testimony to clarify what

information was given to Mr. Berrien by the police (PC-R2. 160- e

As on direct, Mr. Berrien repeated what parts of his trial

testimony were false: that he had seen Mr. Melendez with -38

caliber pistols in the past (PC-R2. 163); that he saw Mr.

Melendez carrying a towel when he picked him up at the beauty

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school (PC-R2. 167); and that Mr. Melendez gave George Berrien

jewelry and .38 caliber pistol at the train station to be sold in

Delaware (PC-R2. 171-73). Mr. Berrien repeatedly testified that

the police had told him what he should say and that they were the

source of the information he offered against Mr. Melendez his

trial (PC-R2. 137, 140, 151, 171-72, 174, 183-84). The circuit

court's statement that Mr. Berrien's recantation is unclear is

simply not supported by the record.

The circuit court also completely disregarded the testimony

of Dr. Richard Ofshe, an expert in police interrogation

substantial evidence, in addition to the recantation, that Mr.

Berrien's trial testimony was both coerced and false. The

circuit court also did not consider FDLE Agent Roper's testimony

that officers discussed the case with Mr. Berrien before taking a

Berrien's recantation. Clearly, the circuit court did not

conjunction with the trial record and previous post-conviction

record or it could not have concluded that Mr. Berrien was lying

when he recanted. His hearing testimony is corroborated by this

expert witness as well as the police testimony at trial that

confirms that the tape recording was manipulated and that Mr.

Berrien was threatened with incarceration.

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ARGUMENT II

MR. MELENDEZ WAS DENIED AN ADVERSARIAL

TESTING BECAUSE THE STATE WITHHELD MATERIAL

EXCULPATORY EVIDENCE AND PRESENTED FALSE

TESTIMONY IN VIOLATION OF MR. MELENDEZ'S

CONSTITUTIONAL RIGHTS.

With almost no discussion, the circuit court dismissed Mr.

Melendez's Brady claim, concluding that I1 [tlhe 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" (PCR.

428). The court's dismissive analysis of the Bradv claim

reveals that it did not consider Dr. Ofshe's analysis

corroborating Mr. Berrien's testimony about the threats and other

coercive tactics the police used to secure his cooperation in

their prosecution of Mr. Melendez, as well as his opinion that

Mr. Berrien's statements and testimony were false.

Significantly, Dr. Ofshe found support for his conclusions in the

transcripts of Mr. Berrien's interviews and did not base his

conclusions solely on Mr. Berrien's account of his interactions

with the police. The court's order does not mention Dr. Ofshe,

but there is no explanation provided for this oversight.

Further, the court's order does not mention Agent Roper's

testimony, which also corroborates Mr. Berrien's account of his

interviews by law enforcement. Mr. Berrien's trial testimony

resulted from coercion and intimidation by law enforcement which

was not revealed at the time of trial, and Mr. Melendez is

entitled to relief.

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A. JOHN BERRIEN'S TRIAL TESTIMONY RESULTED FROM COERCION AND

INTIMIDATION

The circuit court fundamentally misunderstood Mr. Berrien's

interactions with the police. The court correctly noted that Mr.

Berrien had three interviews with the police: March 7, 1984, at

the Lakeland Police Department; March 15, 1984, at the Auburndale

Police Department; and March 17, 1984, at the Polk County Jail.

The court then explained its rejection of Mr. Berrien's claim

three statements differ in detail, they are basically the same.

It is difficult to understand how Berrien's allegedly coerced

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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" (PC-R2. 428).

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While Mr. Berrien's testimony at the evidentiary hearing

initially dealt with the second interview because he begins by

saying "[t]his was in Auburndalell (PC-R. 1361, on crossexamination,

he provided details about the first interview on

March 7, 1984, at the Lakeland Police Department. He stated that

he told the police: "1 didn't know nothing about no murder" (PC-

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R. 144). Despite Mr. Berrien's ignorance of the crime, the

police succeeded in eliciting a statement that incriminated both

Mr. Melendez and himself. Agent Roper testified that before the

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interview began, police had informed Mr. Berrien of facts about

the crime and that they believed Mr. Melendez was involved.

Agent Roper also testified that during this interview the tape

recorder was turned off and on several times, On cross-

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examination, when the State Attorney asked a succession of "do

you remember" questions regarding the first police interview, Mr.

Berrien was unable to recall any of his interview answers and

stated that although he remembered being interrogated at the

Lakeland Police Department, he could not remember anything he or

the police said (PC-R. 149). In addition, Mr. Berrien's

testimony about the first interview does not support the court's

conclusion that the threats and coercion were present only at the

second interview; when asked whether the police made any threats

from the get-go from seeing them all" (PC-R2. 149).

Dr. Ofshe's testimony further supports Mr. Melendez's

argument that Mr. Berrien's statements and testimony were both

coerced and false. First, Dr. Ofshe testified that Mr. Berrien

parole; the police therefore had leverage over him because of the

unspoken threat that his parole could be revoked (PC-R2. 318).

Dr. Ofshe also noted that the interview was conducted either very

late at night or very early in the morning and that there were

five police officers present; these factors placed Mr. Berrien at

a disadvantage and contributed to his feeling of helplessness.

Dr. Ofshe also testified that it was unlikely that Mr. Berrien

could distinguish the three interviews in his memory. This is

consistent with Mr. Berrien's ability to remember that he was

interviewed at the Lakeland Police Department but his inability

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to recall what was said or whether the interview was taped (PCR2.

149).

Agent Roper of the FDLE also corroborates Mr. Berrien's

testimony regarding the first interview. Agent Roper admitted

that before the police began taping Mr. Berrien's statement, they

told him that his car was involved in the murder and that he was

a suspect. In addition, the transcript of the tape recording

reveals that a substantial discussion occurred before the taping

began. For example, Mr. Berrien was asked on the tape about

threats that Mr. Melendez had allegedly made against him, but

there is no prior mention of threats on the tape. Agent Roper

also admitted that the tape was turned on and off during the

interview and that discussion occurred between tapings. Despite

substantial evidence to the contrary, the court incorrectly

concluded that coercion and threats were only employed at the

second interview.

Mr. Berrien's memory of the second interview was consistent

and unwavering, even on cross-examination:

interview you're talking about where you said

Mr. Glisson and Mr. Knapp had a tape recorder

that they kept cutting on and off?

A Right.

wanted you to say?

A Yeah, because they said either

we're going to stick you with it or you're

going down by yourself or you can end up like

Mr. Del.

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frightened?

A Oh, yes, I was.

written out as to what they wanted you to

say?

A They had it on paper.

A Yes *

did they tell you what to say?

A They just told me how they wanted

In addition, the court's conclusions about the interviews

reveals that Dr. Ofshe's expert opinion on the effects of police

coercion were completely ignored. Dr. Ofshe testified that once

a serious and credible threat is made, the subject is placed in a

coercive situation until that threat is removed. The police

threats against Mr. Berrien's life and freedom that were made

from the beginning were still in effect while he remained in

police custody, vulnerable to prosecution and/or violence at the

hands of his interrogators.

Even if the court felt that Mr. Berrien had a "transparent

motive for recanting" (PC-R2. 426), Dr. Ofshe's analysis

precludes a finding that Mr. Berrien was not coerced to give

statements incriminating himself and Mr. Melendez and thereafter

forced to testify falsely at the trial. Dr. Ofshe concluded not

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only that Mr. Berrien was coerced but also that this resulted in

false testimony against Mr. Melendez:

Throughout his statements, it's -- the story

keeps changing and it changes in rather major

ways over the series of recorded interviews

or recorded interrogations. And most of the

content of what he talks about, even though

it itself is changing, by the time of his

deposition prior to the trial and his

affidavit after the trial, he repudiates

virtually all the content that he gave over

the series of interrogations. But the series

of interrogations themselves show so much

variability that one would have to conclude,

simply unreliable without independent

corroboration.

(PC-R. 320-21). Clearly, coercive police tactics resulted in the

presentation of false testimony.

As noted earlier, Mr. Melendez's conviction and death

sentence rest on the credibility of Mr. Berrien. Thus, any

information revealing that his trial testimony was false and the

result of police coercion would be material to Mr. Melendez's

defense. The jury that convicted Mr. Melendez never heard the

evidence discussed in the preceding section establishing that Mr.

Berrien's testimony was the result of police misconduct. Because

the jury is entrusted with the responsibility of evaluating a

witness's credibility, the withholding of information relevant to

regarding a defendant's innocence. United States v. Baslev, 473

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Impeachment evidence of an important State witness is material

evidence which must be disclosed to the defense. Jean v. Rice,

945 F.2d 82 (4th Cir. 1991). The State's withholding of this

witness and from effectively presenting a defense.

Under United States v. Baslev, 473 U.S. 667, 680 (1985),

reversal is required if there exists a "reasonable probability

that had the [withheld] evidence been disclosed to the defense,

the result of the proceeding would have been different."

However, it is not the defendant's burden to show the

nondisclosure It [mlore likely than not altered the outcome in the

case.l' Strickland v. Washinqton, 466 U.S. 668, 693 (1984); Kvles

one that undermines confidence in the outcome of the trial. Such

a probability undeniably exists here.

The undisclosed evidence establishes that Mr. Berrien's

testimony was the result of police coercion. Because Mr. Berrien

was a key State witness who could have been impeached with this

evidence, confidence in the outcome of Mr. Melendez's trial is

undermined. The only evidence offered against Mr. Melendez was

the testimony of David Luna Falcon and Mr. Berrien. There was

absolutely no physical evidence connecting Mr. Melendez to the

crime. The State knew that Mr. Falcon was not a credible witness

and effectively used Mr. Berrien to corroborate his testimony.

Therefore, the impeachment of Mr. Berrien would not only have

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affected the persuasiveness of his own testimony, but would have

undermined the State's entire case. In addition, in the absence

Attorneys for both sides admitted that the credibility of

their witnesses was a fundamental issue for the jury that would

determine their verdict. Mr. Melendez's trial counsel in his

of the State's case, emphasizing that their key witnesses, Mr.

Falcon and Mr. Berrien, both had reasons for testifying against

Mr. Melendez (R. 241). Mr. Alcott attempted to impeach Mr.

Berrien's credibility by telling the jury that he had received

lenient treatment in exchange for his testimony against Mr.

Melendez. He then promised the jury that he would show "the

incredibility of the State's key witnesses" (R. 243). However,

without the evidence withheld by the State, Mr. Alcott's attempts

to impeach Mr. Berrien failed.

The State Attorney's closing statement similarly invited the

jury to evaluate the witnesses' credibility:

We [the attorneys] will probably have

disagreements as to what witnesses to

believe. That's where you come in. . . .

You're going to have to decide what witnesses

to believe and what not to believe and

obviously there are conflicts in the

witnesses. Everybody that got on the witness

stand in this trial cannot be telling the

truth; that's sort of obvious. You're going

to have to decide who to believe, who not to

believe.

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(R. 690-91). The State Attorney then bolstered his key witness's

credibility by telling the jury that Mr. Berrien would not tell a

lie that implicated himself in the crime:

charged with robbery and first degree murder

for his participation in this offense, for

taking Melendez and his cousin, George, to

the crime scene. John Berrien pled no

contest to being an accessory after the fact

to the murder and agreed to testify.

You're going to be asked apparently by

the defense to disbelieve John Berrien; to

come to the conclusion that he is lying. The

problem I've got with that is if John Berrien

is lying, it would mean he did not drive them

to the crime scene. It would mean he was not

involved in the crime at all. So, if that's

true that he was not involved in it, why

would he plead guilty or plead no contest and

face going to prison for a crime that he

didn't commit? That doesn't seem real

logical that the man could be totally

innocent of the crime, as Mr. Melendez claims

John Berrien had nothing to do with the

crime, he never took him anywhere, but yet

the guy is risking going to prison by

pleading in court to something that the

defense wants you to believe he never was

involved in, and that doesn't make a great

deal of sense.

(R. 704). The State Attorney's argument persuaded the jury to

believe Mr. Berrien only because they were deprived of the truth.

Mr. Berrien was coerced by the State to lie, and, in fact, he was

not risking going to prison as the State Attorney alleged but was

facing either probation or house arrest in exchange for his

cooperation in the prosecution of an innocent man. If defense

counsel had known how the State secured Mr. Berrien's selfincriminating

statement, he could have effectively countered the

State's bolstering of its witness. Despite his emphasis on the

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importance of credibility, Mr. Melendez's trial counsel was

unable to effectively impeach the State's witnesses so that his

attempt to argue that Mr. James was guilty of the crime was

ineffective in the face of unimpeached false testimony

incriminating Mr. Melendez.

This evidence was previously unavailable to Mr. Melendez and

could not have been obtained with the exercise of due diligence.

In Cammarano, 602 So. 2d at 1371, the court recognized that

without the cooperation of the recanting witness, any attempts by

defense counsel to persuade him to tell the truth would not have

brought forth the recantation, no matter how diligently defense

counsel questioned him. Clearly, the situation here is

identical. At the time of Mr. Melendez's trial, Mr. Berrien was

still facing potential prosecution based on his selfincriminating

statement. He knew that his deal with the State by

which he would receive either house arrest or probation was

contingent on his testimony against Mr. Melendez. Therefore, any

efforts to convince him to recant his false statements would at

that time have been futile. Unfortunately for Mr. Melendez,

telling the truth at trial was too great a risk for Mr. Berrien

to take.

ARGUMENT III

MR. MELENDEZ WAS DENIED THE EFFECTIVE

ATTORNEY FAILED TO ADEQUATELY INVESTIGATE AND

PREPARE A DEFENSE.

To the extent that the State argues and the lower court

found that the evidence presented below was available to trial

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counsel, Mr. Melendez received ineffective assistance of counsel.

The State has not contested that the evidence was unavailable to

post-conviction counsel. When evidence supporting an ineffective

assistance of counsel claim was unavailable for an initial Rule

3.850 motion but later becomes available, it is proper to present

motion. Provenzano v. State, 616 So. 2d 428, 430-31 (Fla. 1993)

(considering an ineffective assistance of counsel claim presented

in a second Rule 3.850 motion because the facts underlying the

claim were not previously available, even though a different

ineffectiveness claim was raised in first Rule 3.850 motion).

See also Breedlove v. Sinsletarv, 595 So. 2d 8, 11 (Fla.

1992)(allowing presentation of ineffectiveness claims in second

Rule 3.850 motion because conflict of interest prevented raising

claims in first Rule 3.850 motion). Furthermore, it is proper to

plead Bradv and ineffective assistance of counsel in the

alternative. Hildwin v. Duqqer, 654 So. 2d 107, 109 (Fla. 1995)

assistance of counsel). At the evidentiary hearing, the State

brought out that Deborah Ciotti's close relationship with Vernon

James was well-known locally, and that Mr. Alcott knew Sandra

James and Dwight Wells, Mr. Alcott testified he never spoke to

Sandra James about this case. Mr. Wells testified he would have

testified at Mr. Melendez's trial if asked. Mr. Alcott testified

he would have presented additional evidence of Vernon James'

involvement if such evidence were available, particularly the

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If this evidence was available to Mr. Alcott, his failure to

present it was deficient performance which undermines confidence

in the outcome of Mr. Melendez's trial. Strickland v.

Washington. Further, in the lower court, the State argued that

trial counsel could have discovered the evidence regarding Mr.

Berrien's coerced and false trial testimony. If trial counsel

could have discovered this evidence, counsel was ineffective in

failing to do so. As Mr. Alcott testified, evidence showing the

unreliability of Mr. Berrien's trial testimony would have

benefited the defense and he would have presented it.

In State v. Gunsbv, 670 So. 2d 920 (Fla. 19961, the

defendant presented newly discovered evidence at a Rule 3.850

hearing. The State argued the evidence was not newly discovered

because trial counsel could have discovered it through the

exercise of due diligence. This Court held:

In the face of due diligence on the part

of Gunsby's counsel, it appears that at least

some of the evidence presented at the rule

3.850 hearing was discoverable through

diligence at the time of trial. To the

extent, however, that Gunsby's counsel failed

to discover this evidence, we find that his

performance was deficient under the first

prong of the test for ineffective assistance

of counsel as set forth in Strickland v.

Washinqton.

670 So. 2d at 924. Thus, if the evidence presented in the lower

court in Mr. Melendez's case should have been discovered by trial

ineffective assistance of counsel claim.

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another man, namely Vernon James, had killed Mr. Baker. In

support of this defense, Mr. Alcott presented Mr. Melendez's

alibi witnesses and one witness to whom Mr. James had confessed.

However, due to his failure to adequately investigate, Mr. Alcott

did not discover additional witnesses to whom Mr. James confessed

and did not discover the coercion and intimidation employed to

obtain John Berrien's testimony. Such evidence would have

corroborated that of the other defense witnesses and discredited

the testimony of the State's witnesses. Mr. Alcott's failure to

adequately investigate and prepare for trial rendered his

performance ineffective. Mr. Melendez is entitled to relief.

Strickland v. Washington, 466 U.S. 668 (1984).

Mr. Melendez's trial attorney chose a particular defense

strategy -- that Mr. Melendez was innocent and that Mr. James was

responsible for the crime -- and then failed to adequately

investigate possible sources of information supportive of that

Dwight Wells who was representing Mr. Melendez's co-defendant

John Berrien. Mr. Wells had previously represented Mr. James on

at least two occasions and spoke to him about the Baker case

before Mr. Melendez's trial (PC-R2. 194). Mr. Wells summarized

his meeting with Mr. James:

He told me that he was involved in the murder

of Mr. Del. He described to me in some

detail what had gone on. Mr. James shared

with me, however reluctantly, that he was

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homosexual and that this had started out

really as an attempt to go back to Mr. Del's

place and have some drugs and have a party.

That Mr. Del had come on to him in an overlyaggressive

way, and that's what led to the

homicide.

(PC-R2. 194-95) * These conversations were not privileged because

Mr. Wells and the Public Defender's Office were not representing

Mr. James at this time; he was consulted because Mr. James had

developed trust in him based on their prior professional

relationship (PC-R2. 194).

Although Mr. Wells knew that 'lit was extremely important

that the people who were trying this case know about [this

information]lV (PC-R2. 1951, he could not remember whether he told

anyone of Mr. James' confession. Mr. Wells specifically

remembers that he did not share this information with Mr. Alcott;

further, he testified that he would have told him of Mr. James'

statements if Mr. Alcott had discussed the case with him (PC-R2.

195-96).

Mr. Alcott confirmed the importance of this information to

the defense strategy at trial:

[Olur position was that Mr. Melendez did not

do it . . . . Mr. James may well have

participated. So I think we were trying to

show that Mr. James was a participant in the

offense, not Mr. Melendez. And so anything

that would have shown that James was involved

would have been something that I would have

presented.

(PC-R2. 291). Mr. Alcott explained that this information was

consistent with the defense theory at trial but that Mr. Wells'

testimony was not merely cumulative because he has greater

credibility as a witness than Mr. Mims, a cellmate to whom Mr.

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Melendez's trial attorney's failure to interview this obvious

source of information that precluded the jury from hearing

valuable evidence in support of Mr. Melendez's defense.

The lower court found that Deborah Ciotti and Sandra James

were available to trial counsel. Trial counsel testified that

evidence showing Vernon James was involved in the murder would

have supported the defense and that he would have presented such

evidence. However, trial counsel never spoke to Deborah Ciotti

or Sandra James about Mr. Baker's murder. This was deficient

performance which prejudiced Mr. Melendez, for their testimony

would have supported the defense and contradicted the State's

case.

The State argued below that trial counsel could have

discovered evidence regarding the coercive police tactics which

resulted in John Berrien's trial testimony. Trial counsel

testified that evidence showing Mr. Berrien's trial testimony was

unreliable would have been important to the defense not only to

undermine the reliability of Mr. Berrien's account, but also to

show that David Falcon's testimony was uncorroborated. However,

trial counsel did not talk to Mr. Berrien or cross-examine him

regarding his prior inconsistent statements or his deposition

deficient performance which prejudiced Mr. Melendez, for Mr.

Berrien was a key State witness without whom the State could not

have obtained a conviction.

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The Supreme Court has explained that a court making an

ineffectiveness determination must "consider the totality of the

evidence before the judge or jury" and that "[slome errors will

have had a pervasive effect on the inferences to be drawn from

the evidence, altering the entire evidentiary picture, and some

will have had an isolated, trivial effect. Moreover, a verdict

or conclusion only weakly supported by the record is more likely

to have been affected by errors than one with overwhelming record

support." Strickland, 466 U.S. at 696-97.

Here, the verdict is, at best, l'only weakly supported by the

record" and therefore "is more likely to have been affected by

errors than one with overwhelming record support." As discussed

previously, attorneys for both sides admitted that the

credibility of their witnesses was a fundamental issue for the

jury. In the absence of any physical evidence connecting Mr.

Melendez to Mr. Baker's murder, witness credibility was the

determinative factor in the State's prosecution of Mr. Melendez.

Clearly, his conviction and sentence are "only weakly supported"

by the State's evidence, and evidence that Mr. Berrien's

testimony was false and that Mr. James had made several

confessions would have resulted in a different outcome.

The State presented a weak case with absolutely no physical

evidence, and the key issue for the jury was determining the

credibility of contradictory witnesses. Had the defense been

able to invalidate Mr. Berrien's testimony and to corroborate Mr.

Mims, the inmate who testified that Mr. James had confessed to

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him, the jury would have been more likely to accept the defense

prejudiced by his counsel's failure to discover and present this

evidence. Confidence in the outcome of the trial is undermined

relief.

The circuit court failed to consider the cumulative effect

required by Kvles v. Whitlev, 115 S. Ct. 1555, 1567 (19951, and

this Court's precedent. Swafford v. State, 679 So. 2d 736, 739

discovered evidence in conjunction with evidence introduced in

the defendant's first 3.850 motion and the evidence presented at

Court ordered a new trial in Rule 3.850 proceedings because of

the cumulative effect of Brady violations, ineffective assistance

Gunsbv is exactly on point here and should have been followed by

the circuit court. In Gunsbv, this Court found that a new trial

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'That Kyles v. Whitley is not limited to Brady claims is

evidenced by its application to sufficiency of the evidence

claims, United States v. Burros, 94 F.3d 849 (4th Cir. 1996);

United States v. Rivenbark, 81 F.3d 152 (4th Cir. 1996);

ineffective assistance of counsel claims, Middleton v. Evatt, 77

F.3d 469 (4th Cir. 1996); and newly discovered evidence claims,

Battle v. Delo, 64 F.3d 347 (8th Cir. 1995).

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was required because the new evidence presented at the

evidentiary hearing undermined the credibility of key State

witnesses. Id. at 923. This Court also addressed the State's

argument that some of the defendant's evidence did not meet the

test for newly discovered evidence:

In the face of due diligence on the part of

Gunsby's counsel, it appears that at least

some of the evidence presented at the rule

3.850 hearing was discoverable through

diligence at the time of trial. To the

extent, however, that Gunsby's counsel failed

to discover this evidence, we find that his

prong of the test for ineffective assistance

of counsel as set forth in Strickland v.

Washington. The second prong of Strickland

poses the more difficult question of whether

counsel's deficient performance, standing

alone, deprived Gunsby of a fair trial.

Nevertheless, when we consider the cumulative

effect of the testimony presented at the Rule

3.850 hearing and the admitted Brady

violations on the part of the State, we are

compelled to find, under the unique

circumstances of this case, that confidence

in the outcome of Gunsby's original trial has

been undermined and that a reasonable

probability exists of a different outcome.

Id. at 924 (citations omitted). The circuit court not only

failed to consider the cumulative effect of Mr. Melendez's new

evidence but also ignored this Court's instructions in Gunsbv to

consider evidence that does not satisfy the newly discovered test

for its support of an ineffective assistance of counsel claim.

Had the circuit court examined all the evidence Mr. Melendez has

presented throughout his capital proceedings, it would have found

that the previously unknown evidence, in conjunction with the

evidence introduced at Mr. Melendez's trial, undermines

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confidence in the outcome and/or would probably have produced an

acquittal. See Gunsbv; Swafford.

The State's case against Mr. Melendez was extremely weak.

His conviction and death sentence rest solely on the testimony of

two felons, David Luna Falcon and John Berrien. Mr. Falcon

Baker's death. According to Mr. Falcon, Mr. Melendez and a

friend planned to rob Mr. Baker because he was known to have a

lot of money and jewelry. The other man cut Mr. Baker's throat,

and as he was begging to be taken to a hospital, Mr. Melendez

shot him using a pillow as a silencer. Defense witnesses

testified that Mr. Falcon hated Mr. Melendez and had frequently

spoken of his plan to either kill him or get him convicted.

However, the jury never heard evidence showing, inter alia,

that David Falcon was not a trustworthy undercover agent for the

and murderer, was not a regular informant for Agent Roper as he

portrayed himself, and was being protected by Detective Glisson

for his actions in a shooting at the home of a family named

Reagan. See Mr. Melendez's Motion to Vacate, filed 1/16/89, pp.

55-56; Supplement to Motion to Vacate, filed 4/21/89, pp. 69-85.

Because the State knew that Mr. Falcon was unreliable and

unworthy of belief, they used John Berrien to corroborate his

story against Mr. Melendez. John Berrien testified that he drove

his cousin George Berrien and Mr. Melendez to Mr. Baker's beauty

school on September 13, 1983. He testified that he dropped them

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off in the late afternoon and picked them up about two hours

later. The next day, he drove George Berrien and Mr. Melendez to

the train station where Mr. Melendez gave George Berrien jewelry

The only physical evidence supporting this story was an Amtrak

Delaware on September 14, 1983. There was no physical evidence

connecting Mr. Melendez to Mr. Baker's murder.

Evidence withheld by the State demonstrates that John

Berrien's testimony lacked any credibility or reliability; in

addition, John Berrien has recanted his testimony against Mr.

Melendez. The jury was never told that John Berrien was

threatened by the police and coerced into testifying falsely

against Mr. Melendez. The police first elicited a selfincriminating

statement from John Berrien by telling him that

they had enough evidence to convict him and then threatening him

with prosecution if he did not implicate Mr. Melendez. At trial,

the State bolstered this witness's credibility by telling the

jury that he would not tell a lie that implicated himself in Mr.

Baker's murder. Mr. Melendez's trial counsel was aware of the

importance of impeaching John Berrien but failed to use available

evidence such as Mr. Berrien's prior inconsistent statements and

his deposition and lacked the information necessary to do so

effectively because the State withheld material, exculpatory

evidence regarding the coercive police tactics used on Mr.

Berrien.

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The defense presented the testimony of George Berrien who

contradicted every aspect of John Berrien's testimony against Mr.

Melendez. He testified that he had only seen Mr. Melendez once

before, at his cousin John's house. The defense also presented

two witnesses in support of its theory that Mr. James murdered

Mr. Baker. Roger Mims testified that Mr. James confessed to him

when they were held in jail together, and Terry Barber, an

employee at the beauty school, testified that he saw Mr. James in

the back room of the school at about 6:00 p.m. on the night of

the murder. Mr. Barber is the last known witness to see Mr.

Baker alive; he testified that he had never seen Mr. Melendez at

Mr. Baker's beauty school.

In further support of Mr. Melendez's innocence, the defense

also presented two alibi witnesses who were with Mr. Melendez at

the time of Mr. Baker's death. Dorothy Rivera and her sister

Marie Graham testified that Mr. Melendez was with them in

Lakeland on September 13, 1983. Mr. Melendez also testified that

he had never been to Mr. Baker's beauty school.

In the absence of physical evidence, Mr. Melendez's trial

was a contest in which the jury determined the credibility of

contradicting witnesses. The new evidence of four witnesses to

whom Mr. James confessed would have corroborated the defense

witnesses and diminished the State witnesses, resulting in Mr.

Melendez's acquittal. These witnesses include Mr. James' close

friend Deborah Ciotti and his sister Sandra James, to whom he

confessed soon after Mr. Baker's death, and his girlfriend Janice

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Dawson, to whom he confessed after being arrested on other

charges. In addition, Ms. Ciotti saw Mr. James with drugs and

Dawson two rings that he told her had belonged to Mr. Baker. Mr.

would have persuaded the jury of the truth of these confessions

that prove Mr. Melendez's innocence.

Clearly, the presentation of this evidence at Mr. Melendez's

trial, along with the other evidence presented by the defense, is

sufficient to raise a reasonable doubt and would have resulted in

Mr. Melendez's acquittal. The evidence presented at trial

strongly suggested that the wrong man was convicted and sentenced

to death. Melendez v. State, 498 So. 2d 1258, 1262 (Fla.

1986) ("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.")

(Barkett, J., concurring specially). The newly discovered

evidence and evidence never presented because of State misconduct

and trial counsel's ineffectiveness, when viewed cumulatively,

trial.

CONCLUSION

Based upon the record and the discussion herein, Mr.

Melendez respectfully urges that this Court reverse the lower

court's order and grant Mr. Melendez a new trial and sentencing.

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I HEREBY CERTIFY that a true copy of the foregoing brief has

prepaid, to all counsel of record on May 29, 1997.

Florida Bar No. 0841544

Assistant CCR

Post Office Drawer 5498

Tallahassee, FL 32314-5498

(904) 487-4376

Attorney for Mr. Melendez

Copies furnished to:

Candance Sabella

Assistant Attorney General

Westwood Building, 7th Floor

2002 North Lois Avenue

Tampa, Florida 33607

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