THIS MATTER is before the Court on the Defendant's Amended Motion to Vacate Judgments of Conviction and Sentence with Special Request for Leave to Amend and for Evidentiary Hearing, filed on February 23, 2001 ("Motion"), with supplemental authority in support of his Motion filed on March 5, 2001, July 12, 2001, August 20, 2001, and October 4, 2001. The State filed its response on March 9, 2001. In accordance with Huff v. State, 622 So.2d 982 (Fla. 1993), this Court held a hearing on March 19, 2001 and determined that the Defendant was entitled to an evidentiary hearing. The evidentiary hearing was held on May 29, 2001 and May 30, 2001 with Special Assistant CCC-NR Martin McClain, Assistant CCC-NR Linda McDermott, and Assistant CCC-NR Brett Strand representing the Defendant. Hardy Pickard, Assistant State Attorney and Candance Sabella, Assistant Attorney General appeared on behalf of the State of Florida. At the close of all testimony the Court instructed counsel for both parties to prepare written closing arguments and file them with the Court no later than July 9, 2001. The Court indicated that after reviewing the closing arguments, the Court would conduct additional hearings if further clarification or explanation regarding any issue was necessary. Counsel timely complied with the filing deadline and the Court has thoroughly reviewed the Motion, the evidentiary hearing transcript, the previous motions and orders, hearing transcripts, the trial transcript, the court file, the closing arguments, and the applicable case law. After an extensive examination of the above, the Court finds that the Defendant’s Judgment and Sentence must be set aside and that the Defendant is entitled to a new trial.

On September 20, 1984, the Defendant was found guilty of Murder in the First Degree and Armed Robbery. The trial was held in the Tenth Judicial Circuit Court before the Honorable Edward F. Threadgill, Jr. There was no physical evidence implicating the Defendant in the murder. Rather, the Defendant’s conviction rested primarily on the testimony of two key State witnesses, John Berrien and David Luna Falcon. David Luna Falcon testified that the Defendant confessed that he and another man had murdered one Delbert Baker (Mr. Del) at Mr. Baker’s beauty salon. David Falcon further testified that the Defendant said he shot Mr. Del in the head after the other man cut Mr. Del’s throat, while Mr. Del was begging for his life. John Berrien testified that he drove the Defendant and George Berrien, his cousin, to Mr. Del’s salon, dropped them off, and picked them up approximately two (2) hours later. The theory of defense was that the Defendant was innocent and that another individual, Vernon James, either committed the murder and robbery or that he was present when the crimes occurred and could provide the Defense with exculpatory testimony. When defense counsel called Vernon James as a witness, Mr. James invoked his Fifth Amendment right outside the presence of the jury, and did not testify. Defense counsel then called Mr. James’ cellmate, Roger Mims, to testify that Mr. James admitted that he had murdered and robbed Del Baker. No other witnesses were called to testify about admissions made by Vernon James. After the Defendant was found guilty, he chose not to present any mitigation evidence, against the advice of counsel, and the jury returned a recommendation of death. The Court sentenced the Defendant to death on September 21, 1984.

The Florida Supreme Court affirmed the Defendant’s judgment and sentence on direct appeal in 1986. Melendez v. State, 498 So.2d 1258 (Fla. 1986). A subsequent Petition for Writ of Certiorari was denied by the United States Supreme Court. On January 16, 1989, the Defendant filed his initial Motion for Postconviction Relief pursuant to F.R.Cr.P. 3.850 in which he raised numerous claims for relief. (See Motion, dated April 21, 1989, attached). The Circuit Court summarily denied the motion on July 12, 1989 without an evidentiary hearing. (See Order, dated July 12, 1989, attached). In its order, the Circuit Court in Polk County denied eleven (11) of the claims on the grounds that they should have been brought on direct appeal. The Court denied three (3) claims based upon ineffective assistance of counsel and indicated that each failed to meet the appropriate standard as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court also denied the Brady claims and stated that the defense had impeached Falcon through cross-examination, during which he admitted he was a drug user, had been convicted of homicide, worked closely with the police, and was, in fact, a paid informant. The order states that any further impeachment evidence would have been "either non-material, cumulative or simply speculative." On November 12, 1992, the Florida Supreme Court affirmed the denial of the Defendant’s initial Motion for Postconviction Relief. Melendez v. State, 612 So.2d 1366 (Fla. 1992). The Defendant’s Motion for Rehearing was denied on February 18, 1993.

On September 22, 1994, the Defendant filed a second Motion for Postconviction Relief based upon newly discovered evidence. (See Motion, dated September 13, 1994, attached). An evidentiary hearing was held on that motion on May 23, 1996 and May 24, 1996 before Judge Dennis Maloney in Polk County. (See evidentiary hearing transcript (volumes I and II), dated May 23, 1996 and May 24, 1996, attached). The Defendant presented five witnesses to support his newly discovered evidence claim. The witnesses testified that Vernon James had made incriminating statements to them about the murder. On July 17, 1996, the Court entered an order denying relief. (See Order, dated July 17, 1996, attached). In its order, the Court found that four of the five defense witnesses were not credible and that their testimony fell short of the standard set forth in Jones v. State, 591 So.2d 911 (Fla. 1991). The Court indicated that it was not sure what to make of attorney Dwight Wells’ testimony, since his memory of Vernon James’ confessions to him was sketchy, he made no notes or tapes of the conversations, and he could not remember the dates of the confessions or if he had informed the Defendant’s attorney and the assistant state attorney of this information. The Florida Supreme Court affirmed the denial of the Defendant’s second Motion for Postconviction Relief on June 11, 1998. Melendez v. State, 718 So.2d 746 (Fla. 1998).

On October 19, 2000, the Defendant filed his third Motion for Postconviction Relief. His claims were based on newly discovered evidence, ineffective assistance of trial counsel, and Brady violations. On November 6, 2000, the Chief Judge of the Tenth Judicial Circuit Court requested that the Florida Supreme Court assign the undersigned judge with the Thirteenth Judicial Circuit to preside over future proceedings in this case. The Chief Judge indicated that the Motion for Postconviction Relief includes allegations of ineffective assistance of trial counsel, and said trial counsel is now a sitting circuit judge in Polk County. All of the judges in the Tenth Circuit had therefore recused themselves. The Florida Supreme Court issued an order on November 9, 2000 designating the undersigned as a temporary judge of the Tenth Circuit to hear all matters connected with this case. As such, the current Motion is pending before this Court.

In his Motion, the Defendant argues that the State violated his due process rights by failing to disclose exculpatory evidence prior to, during, and after trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). Additionally, the Defendant claims that his trial counsel was ineffective. Finally, the Defendant maintains that newly discovered evidence not previously available to him or his counsel entitles him to a new trial.

The evidence that the Defendant asserts in this Motion as newly discovered consists of 1) a transcript of a recorded interview of Vernon James conducted by Roger Alcott and Cody Smith in August of 1984; 2) notes from assistant state attorney files relating to investigative interviews and notes between the assistant state attorney, investigators, and law enforcement; and 3) several new witnesses who claim Vernon James implicated himself in the murder. The Defendant maintains that his collateral counsel has demonstrated due diligence even though this information remained undiscovered until now.

The State contends that the Defendant’s current Motion is procedurally barred because the evidence the Defendant now claims as newly discovered was available to him years before he filed his second postconviction motion, and thus the due diligence standard has not been met. Additionally, the State maintains that the Defendant’s Motion is time-barred since all the records referenced by the Defendant, as well as the defense witnesses who testified at the evidentiary hearing on May 29 and May 30, 2001, were available prior to the filing of the Defendant’s second postconviction motion and its corresponding evidentiary hearing. See Glock at 251. (Any claim of newly discovered evidence brought in a death penalty case must be brought within one year of the date such evidence was discovered or could have been discovered through the exercise of due diligence).

Without specific statutory criteria or case law defining due diligence, the Defendant refers the Court to Black’s Law Dictionary, which provides in its latest two editions as follows:

due diligence. Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.

See Black’s Law Dictionary 457 (6^th ed. 1991).

due diligence. 1. The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. – Also termed reasonable diligence.

See Black’s Law Dictionary 468 (7^th ed. 1999). Capital Collateral Representatives (CCR) state that they first discovered the transcript of the Vernon James interview in August or September of 2000 after one of their investigators, Rosa Greenbaum, met with trial defense investigator, Cody Smith. The record reflects that Ms. Greenbaum became involved in this case in the summer of 2000, after the denial of the second postconviction motion and when CCR filed its federal habeas petition. In addition to reviewing all the CCR files previously turned over by the Defendant’s trial attorney and his investigator, Ms. Greenbaum testified that she contacted Mr. Smith at his home in Pennsylvania and requested his original notes and files in anticipation of a federal hearing on the habeas petition. (See EH transcript, pp. 113, 115, 396-398, attached). Mr. Smith explained that if he still had his notes they would be in storage in Lakeland, Florida. They met in Florida and went through the storage unit, but Mr. Smith was unable to locate any notes from the Melendez case. (See EH transcript, pp. 115-116, 123, 397-398, attached).

While in Florida, Mr. Smith called Roger Alcott for lunch. Mr. Alcott told Mr. Smith that he may have some records from the Melendez case on a farm that he had recently purchased. Mr. Smith stated that he thought his notes from the case may be in Mr. Alcott’s files, since he often gave Mr. Alcott a copy of them. (See EH transcript, pp. 116-117, 278-279). Mr. Alcott testified that this particular CCR investigation was contemporaneous with his becoming a Polk County circuit judge:

"I had to clean out my office rather rapidly because I was rushing and I moved everything out of the back of it and the file cabinets and stacked it in my storage area, an extra storage area and the garage and whatever, and so I had boxes and shoe boxes full of stuff and whatever, and just coincidentally as I was doing that and Cody came down and I knew that there was probably stuff in those boxes because I thought I had seen boxes that had ‘Melendez’ written on it."

(See EH transcript, pp. 309, attached).

While going through those boxes after his lunch with Mr. Smith, Mr. Alcott found a copy of the transcript of his taped interview with Vernon James at Tomoka Correctional on August 14, 1984 and turned it over to Ms. Greenbaum. (See EH exhibit 34, attached). Mr. Smith testified that he had interviewed Vernon James twice, once alone and then again with Mr. Alcott, but that he did not recall that Mr. Alcott had recorded the second interview. (See EH transcript, pp. 118-120, 131-132, 143-144, attached). Mr. Alcott stated that he did not specifically recall whether he provided the transcript to the prosecution pursuant to the rules of discovery, but assumed that he would have done so. (See EH transcript, pp. 284-285, attached). Additionally, although Mr. Alcott acknowledged that he had conducted the taped interview of Vernon James prior to trial, he testified that he did not know if he had provided a copy of the transcript to collateral counsel prior to the time he found it in his old files in August or September of 2000. He was certain, however, that he did not intentionally withhold it from them. (See EH transcript, pp. 278-279, 308-310, 313, attached).

Mr. Pickard stated that since he had received a copy of the transcript prior to the trial, even if CCR had not received a copy from Mr. Alcott, it should have nonetheless been disclosed to CCR via the assistant state attorney’s files. Although Mr. Pickard states that his entire file was turned over to CCR pursuant to the public records request, he had no independent recollection and could not say for certain if the transcript of the interview between Mr. James and Mr. Alcott was turned over to CCR because he did not directly handle Chapter 119 public records requests. (See EH transcript, pp. 88-89, attached). Moreover, the Defendant’s prior collateral counsel testified that they had no knowledge of the taped statement by Vernon James to Roger Alcott at the time they had prepared their respective postconviction motions.

The Defendant’s first collateral counsel, Leslie Delk, recalled obtaining Mr. Alcott’s trial files, which were complete to the best of her knowledge, and which included the notes from Cody Smith. These files were used by collateral counsel to examine the defense strategy at trial and to determine how the trial attorney prepared his case so that she could prepare for the filing of the initial postconviction motion. (See Delk deposition, pp. 4-5, attached). Ms. Delk testified that there was no indication in Mr. Alcott’s files nor in Mr. Smith’s notes that Vernon James had been personally interviewed by Mr. Alcott and Mr. Smith or that the interview had been tape recorded. Additionally, Ms. Delk testified that in all her legal team’s discussions with Mr. Alcott, in preparing the initial postconviction motion, Mr. Alcott never mentioned that he had taken a taped statement from Vernon James. (See Delk deposition, pp. 6-7, 16-17, attached). Ms. Delk, however, stated that she did not recall specifically asking Mr. Alcott whether he had interviewed Vernon James, or if Mr. Alcott had released all his trial file contents to collateral counsel. (See Delk deposition, pp. 10-11, attached).

The Court finds that Ms. Delk acted reasonably and exercised due diligence. It is certainly logical for collateral counsel to presume that the State would have disclosed everything required pursuant to a public records request. It is also logical for collateral counsel to presume that a defense attorney would have given all relevant materials to Capital Collateral Representatives. In fact, Mr. Alcott wrote a letter to CCR which indicated his intention to cooperate with them during the postconviction process. (See Delk deposition, pp. 11, attached). As such, CCR had no reason to think that Mr. Alcott would not have given them all the information and documentation he had. It would be unreasonable in this instance to require Ms. Delk to have asked Mr. Alcott if he thought he may have some other documents somewhere else that he did not disclose to CCR, or to ask Mr. Smith if there was any other information that he had other than what was in his notes to defense counsel. Moreover, since there was no indication of a personal interview by Mr. Alcott and Mr. Smith of Vernon James, there was no reason for Ms. Delk to believe that such an interview had taken place, that exculpatory information was contained therein, and that defense counsel had simply forgotten to inform CCR of it.

With the information she had, Ms. Delk expressed concerns about Vernon James’ involvement in the crimes in her initial motion for postconviction relief and emphasized CCR’s contention that he had committed the offenses for which the Defendant had been convicted. Ms. Delk testified that if she had known that a taped statement of Vernon James existed which verified that Vernon James was involved in the murder and that the Defendant was not, CCR's position that James was involved would have been corroborated. (See Delk deposition, pp. 6-7, 16, attached).

The Defendant’s second collateral counsel, Gail Anderson, testified at the evidentiary hearing held on May 29 and May 30, 2001. She said that in preparing the state and federal petitions for writ of habeas corpus in 1994, newly discovered evidence surfaced which gave rise to the second postconviction motion. Ms. Anderson recalled that Marty Lake was the individual who had been convicted of the murder of Vernon James and that information from Marty Lake’s file led to new witnesses to whom Vernon James had made incriminating statements. Ms. Anderson’s team also discovered information in that file which led them to several new witnesses, including attorney Dwight Wells, who had represented Vernon James previously in an unrelated matter. Ms. Anderson stated that at the evidentiary hearing on the second postconviction motion, CCR presented evidence regarding the diligence it used to find evidence to support the claims for relief. (See EH transcript, pp. 262-263, attached). Judge Maloney did not address due diligence in his order denying Defendant’s second postconviction motion. Rather the motion was considered on the merits. (See Order Denying Motion to Vacate Judgment and Sentence, dated 7/17/96, attached).

Mr. Wells testified at the hearing on the second postconviction motion before Judge Maloney. He said that Mr. James indicated that he had been involved in the murder of Del Baker. (See evidentiary hearing transcript dated May 23 & 24, 1996, pp. 110-125, attached). Ms. Anderson testified that although the premise for the second postconviction motion was that Vernon James had committed the murder of Del Baker, she did not have any corroborating evidence of Wells’ conversation with Mr. James. (See EH transcript, pp. 257-258, attached). Specifically, Ms. Anderson stated that she did not have the transcript of the interview between Roger Alcott and Vernon James. If she had known of its existence, Ms. Anderson testified that it would have provided her with a basis for an ineffective assistance of counsel claim on two grounds. First, it showed that Mr. Alcott had knowledge that Vernon James implicated himself to Dwight Wells. Secondly, it would have corroborated the testimony of the witnesses she called at the evidentiary hearing. Moreover, Ms. Anderson stated that she would have preferred to bring an ineffective assistance of counsel claim rather than a newly discovered evidence claim, as the burden of proof would have been lower. (See EH transcript, pp. 258-261, attached).

Based upon her review of the record, Ms. Anderson admitted that she had presumed that Mr. Alcott or a member of his defense team had interviewed Vernon James prior to trial. Although she did not recall asking the specific questions, "Did you interview Mr. James" or "Mr. Alcott, well, what did Vernon James tell you?" Ms. Anderson stated that she had spoken with Mr. Alcott more than once prior to the 1996 evidentiary hearing. She and Mr. Alcott had extensive discussions about Vernon James’ involvement, as his involvement was the basis for the motion and the hearing. (See EH hearing transcript, pp. 264-267, attached). Ms. Anderson testified that while drafting the postconviction motion and preparing for the subsequent hearing, Mr. Alcott never mentioned that he had taken a taped statement which would have substantiated CCR’s claims for relief. (See EH hearing transcript, pp. 265-267, 270, attached). Ms. Anderson was certain that she would not forget such an important piece of information, since such evidence contained a direct statement from Vernon James that he was involved in the crimes and would have significantly bolstered CCR’s position. (See EH hearing transcript, pp. 261, attached).

The Court finds that Ms. Anderson, too, acted reasonably and with due diligence in her investigation and preparation for Mr. Melendez' second postconviction motion. Ms. Anderson’s presumption that Mr. Alcott’s defense files were complete was reasonable. As previously indicated, it would be unreasonable to require collateral counsel to specifically ask Mr. Alcott if Vernon James had provided a taped statement implicating himself. Such important information would have been presumed to be in defense counsel’s files and would have been presumed to be revealed in conversations with collateral counsel. It is certainly logical to expect that a defense attorney with knowledge of exculpatory evidence would provide the same to collateral counsel. Although Ms. Anderson stated that she did not personally speak with Cody Smith, she stated that her investigator, Chuck Formosa, did. Mr. Formosa testified that he had spoken with Mr. Smith prior to the evidentiary hearing on the second postconviction motion and Mr. Smith did not recall any mention of a taped interview with Vernon James or give any indication that such an interview had ever taken place. (See EH transcript, pp. 215-216, 220, attached).

Cody Smith, however, testified that he had been contacted by Mr. Formosa in 1995 or 1996 and that he informed Mr. Formosa of the interview with Vernon James at Tomoka Correctional. Mr. Smith further indicated that he did not mention that the interview had been taped because he had not remembered that Mr. Alcott had recorded it. (See EH transcript, pp. 118-120, 131-132, 137-139, 143-144, attached).

The Court realizes that the testimony of Mr. Smith, Mr. Formosa and Ms. Anderson is conflicting as to whether or not CCR had knowledge of the taped interview of Vernon James at the time of the second postconviction motion. The Court also recognizes that many years have passed since these investigations occurred and that an individual’s recollection of his or her actions may not be precise or entirely accurate. In any event, the Court cannot find that Ms. Anderson acted unreasonably in her representation of the Defendant or that she did not act diligently. Since it has not been shown with certainty that this document was provided to collateral counsel from the trial attorney’s file or as a result of the public records request, the Court finds that the Defendant should not be penalized by precluding him from bringing this claim of newly discovered evidence. "There is no other conclusion that is consistent with one of the most important dictates of due process: that proceedings involving criminal charges, and especially the death penalty, must both be and appear to be fundamentally fair." Steinhorst v. State, 636 So.2d 498, 501 (Fla. 1994). As such, the Court accepts Gail Anderson’s testimony and finds that she and her team acted reasonably under the circumstances, and exercised due diligence. As the Court finds that the taped statement of Vernon James to Roger Alcott and Cody Smith could not have been discovered by collateral counsel despite due diligence, the Court will address the merits of the Defendant’s Motion as it pertains to the taped statement.

The assistant state attorney's notes relating to investigative subpoenas and notes between the assistant state attorney, investigators, and law enforcement officers were not disclosed to collateral counsel until the public records request was made regarding this third motion for postconviction relief. As such, these notes were not available to CCR despite its exercise of due diligence. The State simply did not disclose them. Therefore, the Court will address the merits of the Defendant's Motion as it pertains to these previously undisclosed notes.

Since the denial of the second postconviction motion in 1996, CCR claims that they have located additional new witnesses who possess exculpatory information and who were not previously available despite CCR’s diligence. Ms. Greenbaum testified that she discovered these new witnesses based on information she received personally from Marty Lake, the convicted murderer of Vernon James. Gail Anderson and her investigator testified that CCR was unable to locate Marty Lake, despite their legal team’s efforts. (See EH transcript, pp. 217, 255-256, attached). Although there were no notes in CCR’s files as to what efforts were made to locate Marty Lake, Ms. Greenbaum testified that if an investigation leads to "a dead end, a lot of times it won’t get written up...." (See EH transcript, pp. 428, attached). Ms. Greenbaum was able to locate Mr. Lake in December of 2000. When Ms. Greenbaum met with Mr. Lake, he told her that in the mid-90's, he was hiding out in Tennessee because of several outstanding warrants for his arrest. (See EH transcript, pp. 410, 432, attached). Ms. Greenbaum testified that she attempted to locate Mr. Lake again in order to subpoena him to appear at the evidentiary hearing on May 29 & May 30, 2001, but she was unable to find him. At the time of the hearing, the Office of the State Attorney had an active capias out on Marty Lake. (See EH transcript, pp. 432-433, attached). Given the testimony presented, the Court finds that CCR exercised due diligence in their attempts to locate Marty Lake.

At their meeting, Mr. Lake allowed Ms. Greenbaum to review his personal case file involving his conviction for killing Vernon James. Ms. Greenbaum testified that in that file she discovered one Theodore Spencer, who had been questioned when Vernon James was killed. (See EH transcript, pp. 403-404, attached). The Defendant claims that Mr. Spencer is a newly discovered witness who can offer exculpatory information. Ms. Greenbaum stated that although the CCR file on the Defendant contained some copies of police reports as well as the case file regarding the murder of Vernon James, Ms. Greenbaum never saw the name of Theodore Spencer in those files. Additionally, Ms. Greenbaum testified that there was no indication in CCR’s files that anyone at CCR knew of Theodore Spencer. (See EH transcript, pp. 425-426, 431, attached). Since Mr. Spencer’s name was located only after Ms. Greenbaum had found Marty Lake, the Court finds that CCR exercised due diligence although Theodore Spencer was not previously discovered.

Ms. Greenbaum stated that she located Theodore Spencer when she searched the Department of Corrections website and discovered he was in the Polk County jail. Ms. Greenbaum visited Mr. Spencer in jail and he told her what he knew about Mr. Del’s murder. He also informed her of some other individuals, including Stanley Brookshire, who were also associated with Vernon James. (See EH transcript, pp. 406-407, attached). The Defendant claims that Mr. Brookshire is also a newly discovered witness with exculpatory information. Ms. Greenbaum never saw his name in her review of CCR’s files. Additionally, Ms Greenbaum testified that there was no indication in CCR’s files that anyone at CCR knew of Stanley Brookshire. (See EH transcript, pp. 425-426, 431, attached). As Mr. Brookshire’s name was obtained from Mr. Spencer who was not previously available to CCR, the Court finds that CCR exercised due diligence with respect to locating Stanley Brookshire.

Ms. Greenbaum also testified that Marty Lake told her about an individual named Kenneth Graham, who may have information about Vernon James. Ms. Greenbaum testified that she located Mr. Graham in Gainesville, through the Department of Corrections and the Autotrack computer database system. When she met with Mr. Graham in Gainesville, Ms. Greenbaum learned that he had information relevant to the Defendant’s case. (See EH transcript, pp. 407-409, attached). Ms. Greenbaum never saw the name of Kenneth Graham in her review of CCR’s files. Additionally, Ms Greenbaum testified that there was no indication in CCR’s files that anyone at CCR knew of Kenneth Graham. (See EH transcript, pp. 425-426, 431, attached). As Mr. Graham’s name was given to Ms. Greenbaum directly from Marty Lake, who was not available to CCR previously, the Court finds that CCR exercised due diligence in locating Kenneth Graham.

Ms. Greenbaum testified that in reviewing CCR’s files regarding Vernon James, she discovered the name Janet Gauntlett and sought information from the Autotrack system. Although Ms. Greenbaum found nothing about Janet Gauntlett, she discovered an Amanda Gauntlett in the database. Ms. Greenbaum testified that Amanda Gauntlett appeared in the database because she had apparently obtained a Florida driver’s license on June 6, 2000. When she retrieved Amanda Gauntlett’s driver’s license information from the computer, Ms. Greenbaum saw Janet Gauntlett’s name listed with a date of birth, and believed this demonstrated a relationship between Amanda and Janet Gauntlett. Ms. Greenbaum then inputted Janet Gauntlett’s name with the birth date she discovered, but no information surfaced. When Ms. Greenbaum inputted the first name "Janet" with the birth date she discovered, the name Janet Conoway appeared, in addition to several other names she had used in the past: Pierce, Ewing, Kelly, Gauntlett. Ms. Greenbaum testified that in her review of CCR’s files, the only name which referenced this particular individual was Janet Gauntlett. Although CCR had previously attempted to locate Janet Gauntlett, no one was able to find her. (See EH transcript, pp. 411-413, attached). Ms. Greenbaum determined Janet Gauntlett to be Janet Conoway, who the Defendant claims provided Ms. Greenbaum with relevant information which supports his claims. As information on Janet Gauntlett/Conoway was unavailable until June 6, 2000 when Amanda Gauntlett got a Florida driver’s license, the Court finds that CCR exercised due diligence, although Janet Gauntlett/Conoway was not previously discovered.

Ms. Greenbaum also testified that she had seen the name of Denise Nisi Allbrook, spelled A-L-L-B-R-O-O-K in Mr. Alcott’s trial file. Although she and other CCR representatives had been looking for Denise Allbrook, Ms. Greenbaum was unable to locate her in the Autotrack system or through any other means. (See EH transcript, pp. 413-414, attached). In pursuing Frankie Mae Brown, another name in the trial attorney’s file, Ms. Greenbaum located the name Angelia Haughbrook in the "relative" section of Ms. Brown’s Autotrack printout. Although the names are different, Ms. Greenbaum stated she thought that in writing them down, a member of the defense team could have written the incorrect name by mistake. (See EH transcript, pp. 414-415, attached). Ms. Greenbaum interviewed Ms. Haughbrook’s mother, who did not know where she was. Ms. Greenbaum located an address of a man to whom Ms. Haughbrook had been married. A woman at that address told Ms. Greenbaum that Ms. Haughbrook lived in the Washington Park Apartments. When Ms. Greenbaum went to the address she was given for the Washington Park Apartments, the person living there was not Ms. Haughbrook and did not know who she was. As Ms. Greenbaum was leaving the apartments, she asked some women sitting outside if they knew of Ms. Haughbrook. They told Ms. Greenbaum where Ms. Haughbrook was employed and Ms. Greenbaum subsequently interviewed her. (See EH transcript, pp. 415-417, attached).

The Defendant claims Angelia Haughbrook provided Ms. Greenbaum with relevant information which supports his claims. Although previous investigators or members of CCR’s legal team did not make the Allbrook-Haughbrook connection that Ms. Greenbaum did, the Court nevertheless finds that CCR exercised due diligence in searching for Angelia Haughbrook.

Finally, Ms. Greenbaum testified that she located the name of Alphonso Anderson from a 1975 incident report involving an altercation between him and Vernon James. Ms. Greenbaum stated that she found the incident report referring to Mr. Anderson in the CCR files when she took over the investigation in June of 2000. Ms. Greenbaum testified that she thought searching for Alfonso Anderson was a long shot so she was not surprised that prior investigators did not interview him. (See EH transcript, pp. 429-430, attached). However, as this incident report dates back to 1975, the record reflects that the information it contained was readily available to CCR and in its possession prior to Ms. Greenbaum’s leading the investigation in June of 2000. Although the Defendant’s prior collateral counsel, Gail Anderson, testified that she was not familiar with the name Alphonso Anderson, the Court finds that CCR did not exercise due diligence in attempting to locate this witness since his name had been in CCR’s possession for many years. (See EH transcript, pp. 268-269, 429-30, attached). Thus, the Court will not consider Alphonso Anderson as a newly discovered witness.

The Court finds that CCR exercised due diligence in searching for and locating Theodore Spencer, Stanley Brookshire, Kenneth Graham, Janet Conaway, and Angelia Haughbrook, who were not previously available to CCR. Although these witnesses were known to be associated with Vernon James in the past and were available at the time of the Defendant’s trial, CCR had no reason to believe that anyone who simply knew Vernon James would have information relating to the homicide. To require the Defendant to locate all individuals associated in any way with Vernon James at the time of the homicide would place an onerous and unreasonable burden on the Defendant and the law does not require it. The record contained no information that any of these witnesses were known at the time of trial or that they had any information about the homicide. The Court will therefore consider their testimony to determine if it qualifies as newly discovered evidence.

The Florida Supreme Court has consistently held that a new trial is warranted if the newly discovered evidence substantially undermines confidence in the outcome of the prior proceedings or when the newly discovered evidence is of such nature that it would probably produce an acquittal on retrial. See Blanco, 702 So.2d at 1252 (quoting Jones, 591 So.2d at 915); See also Robinson v. State, 707 So.2d 688, 691 (Fla. 1998). When a prior evidentiary hearing has been conducted, "the trial court is required to ‘consider all newly discovered evidence which would be admissible’ at trial and then evaluate the ‘weight of both the newly discovered evidence and the evidence which was introduced at the trial’" in determining whether the evidence would probably produce a different result on retrial. Lightbourne v. State, 742 So.2d 238, 247 (Fla. 199) (citing Jones v. State, 709 So.2d. 512, 521-22 (Fla. 1998). This cumulative analysis must be conducted so that the trial court has a "total picture" of the case. Lightbourne at 247 (Fla. 1999). As such, the Court will first address individually the Defendant’s current claims of ineffective assistance of counsel, Brady violations, and newly discovered evidence. The Court will then consider them cumulatively, along with previous evidence provided at trial and during other postconviction proceedings, to determine if a reasonable probability exists of a different outcome.

I. Ineffective assistance of counsel claim

When ineffective assistance is alleged, the burden is on the person seeking collateral relief to specifically allege the grounds for relief and to establish whether the grounds resulted in prejudice. Effective assistance of counsel does not mean that a defendant must be afforded errorless counsel or that future developments in the law must be anticipated. Meeks v. State, 382 So. 2d 673 (Fla. 1980). In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the U.S. Supreme Court provided the following standard for determining ineffective assistance of counsel:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . [T]he proper standard for attorney performance is of reasonably effective assistance.

466 U.S. at 686-687.

In Downs v. State, 453 So. 2d 1102 (Fla. 1984), the Florida Supreme Court stated that the defendant must affirmatively prove prejudice. The test for prejudice is:

[T]hat there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694.

When assessing a claim of ineffectiveness, "either the performance component of the test or the prejudice component can be evaluated first. If either one of these showings is insufficient, defendant's claim must fail." Downs, 453 So.2d at 1109.

In his Motion, the Defendant claims that his trial counsel was ineffective for failing to investigate and present to the jury attorney Dwight Wells’ testimony regarding Vernon James’ confession as to his involvement in Mr. Del’s murder. The Defendant contends that Mr. Alcott had taped an interview of Vernon James prior to trial, and that in this taped conversation, Vernon James stated he had previously told Dwight Wells that he was involved in the murder of Mr. Del. The Defendant maintains, however, that instead of investigating what Vernon James told Mr. Wells, and then calling Mr. Wells to testify, Mr. Alcott called Vernon James’ cellmate, Roger Mims, to testify as to Vernon James’ confession. The Defendant claims this was deficient performance, since Mr. Alcott testified at the latest evidentiary hearing that he would rather have had someone testify with more credibility than a cellmate.

The record reflects that Mr. Alcott did tape his interview with Vernon James on August 14, 1984 at Tomoka Correctional Center. (See EH exhibit 34; See also EH transcript, pp. 278, 291-292, attached). In that interview, Vernon James referred to Dwight Wells as being with Mr. James and an investigator from the public defender’s office when Mr. James told him what he knew about the homicide. (See EH exhibit 34, attached). At the evidentiary hearing on May 29 and 30, 2001, Mr. Alcott recalled that after Vernon James invoked the Fifth Amendment and did not testify, Mr. Alcott called Roger Mims as a witness as to what Vernon James supposedly had told him the week before trial. (See EH transcript, pp. 282-83, attached). At trial, the prosecution attacked Mr. Mims’ credibility as unconvincing:

Q: How long have you and Mr. James been in the same cell?

A: About – say about a month, three weeks maybe.

Q: About what?

A: About three weeks to a month?

Q: Three weeks to a month?

A: (Witness nods.)

Q: And Mr. James didn’t tell you about any of this till last Friday, is that what you’re saying?

A: Well, we talked about it at various times, but he never did tell me about what happened till that time.

Q: He waited till last Friday to tell you about – to tell you that he was involved in it, is that right?

(See trial transcript, pp. 637-638; See also EH transcript, pp. 290, attached).

Despite the credibility problems with Roger Mims’ testimony, Mr. Alcott testified at the evidentiary hearing that he had no recollection of exploring the possibility of calling Mr. Wells to testify regarding his conversation with Vernon James. He said that he probably never even thought to call Dwight Wells as a witness:

Q: Do you recall if you ever checked with Dwight Wells regarding that?

A: I don’t have a recollection. Dwight Wells is an attorney and, in fact, represented John Berrien, the codefendant, and it well could be that I got that information from Mr. Wells initially which prompted me to see James. On the other hand it could be that I talked to Wells later about this. I’m not really sure.

Q: Do you have any memory exactly of what happened?

A: No.

Q: Do you have any memory as to why or why not you would have – I mean, just trying to explore. If you don’t have a memory of having a conversation with Dwight Wells I don’t know if you’ll know the answer to this, but is there any reason that you know of why you would not have wanted to talk to Dwight Wells and/or considered presenting his testimony regarding his conversation with Vernon James?

A: Dwight Wells the attorney?

Q: Yeah.

A: It probably never, to be honest with you, crossed my mind to call him because he was a defense attorney representing one of the codefendants and obviously he was going to become a State’s witness. To be honest with you I probably never even thought about calling Dwight Wells to testify as a witness about what James had told him.

Q: And also just for clarification purposes, that transcript indicates that that was on August 14^th which would have been a month before trial, so would that indicate that Dwight Wells would already have been talked to even in advance of that, I mean, prior to August 14^th?

A: Well, I couldn’t swear to that one way or the other. I remember going up to the institution to talk to Vernon James but I don’t remember whether I had talked to Wells before or after.

Q: And actually I’m not even referring to your talking to Wells. I’m referring to the fact that Vernon James obviously would have, as his report indicated, Dwight Wells, that conversation would have had to occurred prior to that time?

A: Oh, yes.

Q: And that’s just in connection with the claim at trial that Roger Mims’ reliability, or the information was in doubt because it was not until the Friday before the trial started this information was provided?

A: Yeah. But it wasn’t any recent fabrication. He had been telling that story consistently for some period of time.

(See EH transcript, pp. 292-294, attached).

Additionally, Mr. Alcott testified at the evidentiary hearing that he would rather have had a more credible witness to report Vernon James’ confession in order to "carry a little more indicia of honesty about it." (See EH transcript, pp. 289-291, attached). It appears from the record that Mr. Alcott may have had such a witness in Dwight Wells but failed to pursue the possibility of presenting his testimony. Although the taped statement of Vernon James does not include the specifics of what Mr. James disclosed to Dwight Wells, Mr. Wells was mentioned as an individual in whom Mr. James confided about who was involved in the homicide. Had Mr. Alcott pursued this avenue and inquired of Mr. Wells, he would have learned what Mr. James had told Mr. Wells. At the evidentiary hearing on May 23, 1996, Mr. Wells testified as follows regarding the substance of Vernon James’ statements to him:

Q: Do you remember when this conversation with Mr. James occurred?

A: I really don’t. I mean, I know it was before the trial of Mr. Melendez, but I don’t have any specific time or date.

Q: And when you went to speak to Mr. James, what did he tell you?

A: 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 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 overly-aggressive way, and that’s what led to the homicide.

* * *

Q: Did you ever talk to Roger Alcott about Mr. James’ confession?

A: I do not believe I did, no.

Q: Did Mr. Alcott at any time while 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.

(See May 23, 1996 evidentiary hearing transcript, pp. 110-116, attached).

The Court finds that the Defendant’s trial counsel should have investigated the possibility of calling Dwight Wells as a witness. However, the error was not egregious enough to satisfy the first prong of Strickland nor has the Defendant shown that because of this error, there is a reasonable probability of a different result at trial.

The Defendant also claims that his trial counsel was ineffective for failing to subpoena Mr. and Mrs. Reagan to discredit David Luna Falcon because of his alleged violent confrontation with them. (See Motion). However, the record reflects that the substance of Mr. Reagan’s testimony was admitted at trial by stipulation between the State and the Defense. (See trial transcript, pp. 557-558, as marked for appeal purposes, attached). In the stipulation, Mr. Reagan accused David Luna Falcon of threatening the Reagans in their home and shooting at Mr. Reagan’s vehicle outside. (See trial transcript, pp. 557-558, as marked for appeal purposes, attached). Thus, the record reflects that Mr. Alcott used Mr. Reagan’s statement to impeach Mr. Falcon. Although live testimony would probably have been preferable to that of a stipulation, the Court does not find that Mr. Alcott was deficient for neglecting to subpoena the Reagans. The fact is that the substance of the testimony was presented to the jury. The Defendant was, therefore, not prejudiced by the Reagans’ non-appearance.

Further, even considering Mr. Alcott’s failure to investigate the possibility of calling Dwight Wells as a witness, together with his failure to subpoena the Reagans for trial, the Court does not find these errors to be so serious that Mr. Alcott was not functioning as "counsel" guaranteed the Defendant by the Sixth Amendment. Since the Defendant has not met either prong of the Strickland test, he is not entitled to relief on this ground.

The Fifth and Fourteenth Amendments to the United States Constitution require the State to disclose evidence favorable to the accused that if suppressed would deprive the defendant of a fair trial. Brady v. Maryland, 373 U.S. 83 (1963). A defendant must prove the following three elements to successfully establish a Brady violation: (1) the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently; and (3) the state’s failure to disclose the evidence was prejudicial. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In United States v. Bagley, the United States Supreme Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes. 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d. 481 (1985).

The test for measuring the effect of the failure to disclose exculpatory evidence is whether there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. "Reasonable probability" is defined by the Florida Supreme Court as "probability sufficient to undermine confidence in the outcome." White v. State, 664 So.2d 242 (Fla. 1995). Moreover, the duty lies with the prosecution to determine whether the undisclosed evidence is exculpatory. As only the prosecution knows what is undisclosed, the prosecutor has the responsibility to assess the effect of the evidence in its entirety and then to determine whether there is a reasonable probability that the undisclosed evidence would change the result of the case. See Young v. State, 739 So.2d 553, 557 (Fla. 1999); See also Kyles v. Whitley, 514 U.S. 419, 434-36, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The State’s duty to disclose exists even if the defense has not made a specific request for the information. See Kyles, 514 U.S. at 433-34; See also Bagley 473 U.S. 667 at 680-81.

In reviewing the materiality of an alleged Brady violation and whether the third prong of prejudice exists, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Strickler, 527 U.S. at 289-90. This prejudice requirement involves a mixed question of law and fact. The Court must evaluate the net effect of the suppressed evidence and determine "whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Maharaj v. State, 778 So.2d 944, 953 (Fla. 2000). As the Court must analyze the net effect of the suppressed evidence to see the effect on the verdict, this Court will address the prejudice prong of the Brady criteria once it has determined what, if any, of the alleged undisclosed evidence was favorable to the Defendant and suppressed by the State. The Court will then consider the favorable evidence to which the Defendant did not have access, and determine whether that cumulative evidence shakes the confidence in the verdict, thereby entitling relief to the Defendant. See State v. Huggins, 788 So.2d 238, 243-44 (Fla. 2001).

The Defendant claims that the State withheld several documents containing exculpatory evidence which would have supported his theory of defense at trial. The record is clear that at trial and throughout the postconviction proceedings, the theory of defense was that Vernon James and two other unknown men were involved in the murder of Mr. Baker, and that the Defendant was innocent.

Law enforcement officers testified on behalf of the State and used their police reports as reference. The Defendant claims that the prosecution violated Brady when Mr. Pickard withheld the fact that these police reports were not prepared until six months after the night of the homicide.

The record reflects that Mr. Pickard drafted a letter on April 11, 1984 to the Chief of the Auburndale Police Department in which he indicated that as of that date, several of the police officers involved in the investigation, Ben Cox, John Knapp, and Jerry Richardson, had not yet written or submitted police reports on the homicide or any investigation related to the homicide. (See EH exhibit 3, attached). However, this letter was never provided to the Defendant’s trial counsel. (See EH transcript, pp. 18-19). The record also contains police reports from Officers Cox, Richardson, and Knapp with the listed dates of September 14, 1983, September 14, 1983, and September 15, 1983, respectively. (See EH exhibits 5, 6, and 7). Although these dates are within days of the homicide, Mr. Pickard testified that he did not have those reports until after he wrote the letter asking why several officers had not prepared reports. Additionally, Mr. Pickard confirmed that the information contained in two of the reports, Officer Richardson’s and Officer Knapp’s, referred to investigative leads which were not discovered by law enforcement until six months after the homicide. (See EH transcript, pp. 18-26). Mr. Alcott testified that had he known that as of April 11, 1984 several police reports had not been prepared, he would have used that information at trial for impeachment of the police officers involved: (See EH transcript, pp. 294-295).

"...If you’re talking about the reports the officers are using in terms of memory about the events that they recorded it’s very critical to know whether or not they reported the events, and reported them at the time the mind was fresh with the facts, or whether that it was done some months later in a reconstructive type mode." (See EH transcript, pp. 337).

Thus, the Defendant has shown that this information constitutes Brady material as it is favorable to him, since his trial counsel would have used it to impeach the officers’ recollection of detail at trial. Additionally, the Defendant has shown that the State knew and suppressed, even if inadvertently, from the Defendant, the fact that the police officers had not prepared the police reports contemporaneously with their investigation since the letters were not disclosed to the Defense. Although, standing alone, it is not an egregious Brady violation, it is nevertheless a violation. (See pp. 27, footnote no. 8)

The Defendant also claims that the State withheld other documents containing exculpatory evidence. First, the Defendant contends that Assistant State Attorney Pickard failed to disclose to the Defendant’s trial counsel a statement made by Vernon James to Arthur Meeks, an investigator for the Office of the State Attorney. On September 4, 1984 Mr. Pickard wrote a note requesting that his investigator, Mr. Meeks, go to the jail to interview Vernon James. (See EH exhibit 36, attached). Mr. Meeks interviewed Mr. James and Mr. Pickard wrote notes detailing the information Mr. Meeks received from Mr. James:

Told Arthur about a murder in prison

that 2 others did + he just there.

Said he there to help settle argument. Wouldn’t

tell who did it unless help him. Said he left prior to murder.

Said went to Del’s with 2 homos –

Waited outside when they killed Del.

Wouldn’t tell who did it.

Went there to settle argument with homos + Del.

V.J. inside at 1^st – departed prior.

(See EH exhibit 37, attached). The State then listed Mr. Meeks as a potential rebuttal witness.

The State maintains that it listed Mr. Meeks as a potential rebuttal witness to Vernon James’ expected trial testimony, and thus trial counsel had the opportunity to depose Mr. Meeks to learn what he knew about the case. However, Roger Alcott testified that when he received the amended discovery notice listing Mr. Meeks as a potential rebuttal witness, he telephoned Mr. Pickard to ask what Mr. Meeks would say. Mr. Alcott testified that he could tell from his handwritten notes that Mr. Pickard had told him the following: that Vernon James had told Mr. Meeks back in November of ‘83 that if they would get him out of jail, he would help them solve the crime, but that he didn’t know who did it. (See EH exhibit 44; See also, EH transcript, pp. 285-287, attached). Mr. Alcott testified that he had no knowledge that Mr. Pickard had asked his investigator, Mr. Meeks, to go to the jail and re-interview Vernon James. Mr. Alcott also stated he had no knowledge of Mr. Pickard’s handwritten note which indicated that Mr. Meeks had spoken with Vernon James and that Mr. James admitted that he was at Mr. Del’s at the time of the homicide. (See EH exhibits 36, 37; See also, EH transcript, pp. 287-288). Mr. Alcott stated that had he known this, he would have called Mr. Meeks as a witness to show that Vernon James’ account of events to Mr. Meeks was consistent with what Mr. James had told Mr. Alcott. Mr. Alcott stressed the importance of having Mr. Meeks, a state attorney investigator, testify as to what Vernon James had revealed, as his testimony would carry much more credibility than that of Mr. James’ cellmate, Roger Mims. In fact, when Roger Mims testified at trial as to what Mr. James had said regarding the homicide, his credibility was attacked and his motive for waiting to come forward until just before the trial was questioned. (See trial transcript, pp. 584-592, as marked for appeal purposes; See also, EH transcript, pp. 290, attached).

Mr. James’ statements during the subsequent interview by Mr. Meeks clearly contain information favorable to the Defendant. The State claims that this information does not qualify as exculpatory evidence, since it does not exclude the Defendant as a perpetrator. However, even if the information does not eliminate the Defendant as a possible perpetrator, it certainly is favorable to the Defendant to the extent that it is impeachment evidence of the two key State witnesses. Vernon James’ statements to Mr. Meeks clearly conflict with the trial testimony of John Berrien and David Luna Falcon. See Huggins at 242-43. Additionally, Mr. Alcott testified that he believed Vernon James’ statements to Mr. Meeks were exculpatory and that if he had known at the time that Arthur Meeks had interviewed Vernon James a second time, he may have wanted to depose Mr. Meeks to learn the details of that interview. (See EH transcript, pp. 331-333, attached). The Defendant has, therefore, shown that this evidence has met the first criteria in Brady, that the evidence is favorable to the Defendant. Furthermore, since Mr. Pickard testified that he did not disclose this information to the Defendant’s trial counsel, and Mr. Alcott testified that he did not receive this information from the State, the Defendant has shown that this evidence has also met the second criteria in Brady, that the evidence was suppressed by the State, either willfully or inadvertently. (See EH transcript, pp. 98-103; 286-288; 288-291, attached).

The Defendant further contends that the State willfully withheld two documents from his trial counsel relating to the incident with the Reagan family, which allegedly involved a key State witness, David Luna Falcon. The record reflects that on May 29, 1984, shortly after the incident, a uniformed officer prepared the original report which lists Detective Gary Glisson as the assigned lead detective. The report states that on May 29, 1984, Mrs. Reagan answered the front door of her home when she heard someone knock and say "police." Two men, one Puerto Rican and one white, "slung" her and her son around and kicked in the bedroom door. Mr. Reagan stated that he came out of the bathtub when he heard his wife screaming, and he saw the Puerto Rican man pointing a gun at him. The two men then left the home and fired shots at Mr. Reagan’s vehicle outside. Mr. Reagan identified the Puerto Rican male as David Falcon. In a follow-up report, Detective Glisson states that the incident was drug related. He also states that despite identifying one of the perpetrators as David Luna Falcon, the victims wanted to sign a waiver of prosecution. (See EH exhibit 29, attached). At trial, Mr. Alcott attempted to impeach David Luna Falcon with this information, but Mr. Falcon maintained his innocence in connection with the Reagan incident. (See trial transcript, pp. 457-458, as marked for appeal purposes; See also EH transcript, pp. 66, attached).

The Defendant claims that the State had additional documentation, which would have further undermined Mr. Falcon’s credibility regarding the Reagan incident. That evidence included the following: 1) a handwritten report directed to Mr. Pickard regarding details of the Reagan home invasion obtained in an interview with Mr. Reagan; and 2) a letter drafted from Mr. Pickard to Detective Gary Glisson of the Auburndale Police Department regarding Mr. Falcon’s involvement in the Reagan incident.

The body of the handwritten report directed to Mr. Pickard is dated May 1984 and contains details from Mr. Reagan about the incident. A note to Mr. Pickard in the corner of the report is dated June 8, 1984 and states that Mr. Pickard should be made aware of the report and advise accordingly. Although the report is not signed and there is no proof that it was prepared by someone in law enforcement, there is no reason to believe that anyone other than a law enforcement officer or someone otherwise connected with law enforcement or the Office of the State Attorney prepared the report. (See EH exhibit 30; See also, EH transcript, pp. 71, attached). The handwritten report indicates that Mrs. Reagan signed a waiver of prosecution after Detective Gary Glisson told her: "The more I look at this the more charges I could bring against your husband"-"If I lock up Falcon he’ll just bond out and he may come back [and] get you"- (See EH exhibit 30, attached). The report also indicates that Detective Glisson reminded Mrs. Reagan that David Luna Falcon may be dangerous and that she should be afraid. Although the handwritten report indicates that Detective Glisson either threatened or otherwise induced Mrs. Reagan to drop the charges against David Falcon, Detective Glisson denied these accusations. (See trial transcript, pp. 538-541, as marked for appeal purposes; See also EH transcript, pp. 70-71, attached). Mr. Pickard testified that he did not provide Mr. Alcott with copies of the handwritten report, but claims that Mr. Alcott was well aware of its contents. (See EH transcript, pp. 73, attached).

The letter drafted by Mr. Pickard to Detective Glisson states in relevant part, "I was contacted today by Tom Roper who advised me that we have a problem with our source on the Del Baker case. It seems Mr. Falcon got himself into some trouble with a firearm while supposedly working undercover for you making drug buys. Agent Roper and myself have discussed the situation and we are both in agreement that until the Baker case is concluded in Court, Falcon should not be worked on the street to make narcotic purchases." (See EH exhibit 31, attached). Mr. Pickard testified that he did not provide Mr. Alcott with a copy of the letter either, but claims that Mr. Alcott was aware of its contents as well. (See EH transcript, pp. 73, attached).

Mr. Alcott, however, testified that he was not informed of the substance of these two documents. He stated that he would have liked to have had this information for its impeachment value. Mr. Alcott stated that had he access to the information, he would have argued that the State failed to thoroughly investigate the Reagan home invasion incident because it led to Mr. Falcon, who was a critical witness in their case against the Defendant. (See EH transcript, pp. 306, attached). These documents would have offered the Defense another opportunity to attack Mr. Falcon’s credibility. Mr. Falcon’s credibility in general, as well as his credibility with regard to the alleged shooting incident, was a critical issue at trial and was addressed by counsel in closing arguments. With no physical evidence implicating the Defendant in the murder, the credibility of David Luna Falcon was crucial. (See trial transcripts, pp. 700-706, 714, 716-718, 724, as marked for appeal purposes, attached). As such, the Court finds that prong one of Brady has been satisfied.

The State concedes that these documents were not provided to the Defendant’s trial counsel. Although the State claims that Mr. Alcott was aware of the substance of these documents, Mr. Alcott testified otherwise. He said that he would have used the information had he received it. Thus, the Court finds that prong two of Brady has also been satisfied.

Lastly, the Defendant claims that the State improperly withheld sworn witness statements obtained through ex parte investigative interviews, which could have been used to impeach those witnesses during depositions and at trial. These sworn statements include notes from interviews of both key State witnesses, David Luna Falcon and John Berrien, and others. (See EH exhibits 13, 27, attached).

After the indictment was returned, the State issued numerous investigative subpoenas with the caption "State of Florida vs. John Doe." Mr. Pickard and Mr. Alcott both confirmed that this was standard practice for the State in the 1980's in Polk County. (See EH transcript, pp. 48, 296, attached). The witnesses appeared at the Office of the State Attorney pursuant to subpoena. Mr. Pickard administered an oath to the witnesses and then made handwritten notes as to their sworn statements. Mr. Pickard did not notify defense counsel of the interviews and no one was present other than Mr. Pickard and the witness during the interviews. (See EH transcript, pp. 35-65, attached). Mr. Pickard did not provide these handwritten notes to Mr. Alcott because he said that they were taken for investigative purposes. Mr. Alcott said that although it would have been nice to have them, he did not expect Mr. Pickard to disclose his handwritten notes concerning his interviews with these witnesses. (See EH transcript, pp. 328, attached). Mr. Alcott stated, however, that had these notes been provided to him, he would have compared them against the deposition testimony and the trial testimony of witnesses to see if there were any inconsistencies to discredit the witnesses. (See EH transcript, pp. 297, attached).

Florida Rule of Criminal Procedure 3.220 (1983) governed the discovery obligations of both the prosecution and defense and provides in pertinent part as follows:

(a) Prosecutor’s Obligation.

(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State’s possession or control:

(i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.

(ii) The statement of any person whose name is furnished in compliance with the preceding paragraph. The term "statement" as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement...

* * *

(vii) Whether the State has any material or information which has been provided by a confidential informant.

* * *

(2) As soon as practicable after the filing of the indictment or information the prosecutor shall disclose to the defense counsel any material information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged.

(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda, to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney, or members of his legal staff.

* * *

Fla.R.Crim.P. 3.220 (1983).

Mr. Pickard claims that he committed no discovery violation. He maintains that his handwritten notes of the witnesses’ interviews do not constitute "statements" within the meaning of the discovery rules, because the witnesses were being interviewed for investigative purposes. (See EH transcript, pp. 35-36, attached). However, whether or not the prosecutor’s notes are "statements" under the discovery rules is not dispositive. As designated by Rule 3.220(a)(2)(1983), the prosecution has a continuing obligation to provide the Defense with material information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged. As the prosecution has the responsibility to determine whether the undisclosed evidence is exculpatory, it would be a violation of the discovery rules if the State possessed such information and failed to provide it to the Defendant. See Young at 557. Moreover, regardless of whether a discovery violation occurred or whether any information is exempt from disclosure under the rules of discovery, a prosecutor’s obligation to disclose exculpatory evidence nonetheless exists under Brady. See Johnson v. State, 713 So.2d 985, 986-987 (Fla. 1998).

David Luna Falcon was listed on the State’s Notice of Discovery as an individual with material information about this case. (See Responses to Request for Discovery, attached). Mr. Falcon testified at trial that one night in January of 1984, Mr. Melendez and he were drinking and using drugs at a night club, and that Mr. Melendez confessed that he had killed Del Baker. (See trial transcript, pp. 437-457, as marked for appeal purposes, attached):

Q: Did he tell you who he went there with?

A: He told me he went there with another black guy and with a driver, with John, you know.

Q: John?

A: Yes, sir.

* * *

Q: And who did he tell you also went besides he and John?

A: It was another black guy.

Mr. Alcott: Objection, Your Honor, to the leading nature of the question.

The Court: Objection overruled. He can answer the question.

Q: Did he tell you the name of the other black guy?

A: No, no sir.

* * *

Q: What did he tell you happened after they got over there?

A: Well, they said that - - Melendez and the other black guy, they went inside and then the other black guy cut Mr. Del’s throat; that Mr. Del fall [sic] on the floor and then started throwing blood at them, you know, like that (indicating), like that on the floor, and doing - -

Q: Doing what?

A: Throwing the blood. When they cut the throat of Mr. Del, he fall [sic] on the floor bleeding and from the floor Mr. Del was picking up the blood and throwing it at them like that (indicating).

Q: Picking up the blood?

A: Yeah, and he said he’d give them one million to take him to the hospital, and Melendez say, "No, you don’t go to the hospital, you’ll tell the police," and he picked up the gun and shot him in the head.

Q: Who shot him in the head?

A: Mr. Melendez.

Q: After Mr. Baker had asked him to take him to the hospital?

A: Yeah.

(See trial transcript, pp. 441-444, as marked for appeal purposes, attached)

As shown in his above testimony at trial on September 18, 1984, Mr. Falcon referred to one of the perpetrators as "the other black guy" and stated that he did not know the identity of that man. However, in Mr. Pickard’s notes from Mr. Falcon’s investigative interview five months earlier on May 4, 1984, Mr. Falcon gave a sworn statement under oath that John Berrien drove Mr. Melendez and George Berrien to Mr. Del’s on the day of the murder. The prosecutor’s notes reflect that Mr. Falcon stated that George cut Mr. Del’s throat, Mr. Melendez shot Mr. Del in the head, and George took Mr. Del’s jewelry, which he later took to Delaware. (See EH exhibit 27, attached). Thus, Mr. Pickard’s notes from David Luna Falcon’s sworn statements clearly reveal the identity of "the other black guy," which Mr. Falcon claimed he did not know when he testified at trial. This information certainly contradicts Mr. Falcon’s testimony.

Additionally, Mr. Pickard’s notes from David Luna Falcon’s sworn statements on May 4, 1984 contain no mention of the Defendant’s refusing to take Mr. Del to the hospital for fear he may go to the police or that Mr. Del was throwing blood at them. Rather, the notes indicate that the Defendant told Mr. Falcon that Mr. Del was spitting blood and offered them one million dollars to take him to the hospital. (See trial transcript, pp. 401 as marked for appeal purposes; See also EH exhibit 27, attached). Although these may seem to be small details not included in Mr. Falcon’s statement to Mr. Pickard, they are significant. The sentencing order from the Defendant’s trial demonstrates that the Court relied on this portion of Mr. Falcon’s trial testimony to establish two aggravating factors:

"The crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel as shown by a portion of the trial testimony of David Luna Falcon attached as Exhibit B.

The crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification as shown by a portion of the trial testimony of David Luna Falcon attached as Exhibit B."

(See Finding in Support of Death Penalty with Exhibit B, attached).

Mr. Pickard’s notes from Mr. Falcon’s interview contain numerous additional differences and deletions from Mr. Falcon’s trial testimony:

1) trial testimony: At a night club, Mr. Falcon told Mr. Melendez that he was an outlaw from Puerto Rico, an escaped fugitive from justice, and that he was wanted for murder. There is no mention of showing the Defendant an arrest warrant.

sworn statement: Mr. Falcon stated that at the night club he showed Mr. Melendez a warrant for Mr. Falcon’s arrest for murder. Mr. Falcon also said that he had shown the warrant to the Defendant when he met him for the first time at the house.

2) trial testimony: After Mr. Del was killed, the other black guy (George Berrien) was picking up the traces of any kind of fingerprints before he and Mr. Melendez left Mr. Del’s.

sworn statement: There is no mention of covering up or removing fingerprints.

3) trial testimony: Mr. Falcon stated that Mr. Melendez described the type of car they were in the night of the murder, that it was John’s car, a Dodge, with three colors.

sworn statement: Mr. Falcon stated that the Defendant did not describe the car, but that Mr. Falcon found out through his own investigation.

4) trial testimony: Mr. Falcon tried to help the police catch Mr. Melendez by taking law enforcement officer Tom Roper to the Flamingo night club.

sworn statement: There is no mention of helping police capture Mr. Melendez or taking Mr. Roper to the Flamingo. Mr. Falcon’s statement only indicates that once Mr. Falcon discovered the vehicle was John’s, he pointed the car out to the police.

5) trial testimony: Mr. Falcon said Mr. Melendez told him the type of gun he used was a .38.

sworn statement: There is no mention of the type of gun; only that the Defendant did not tell Mr. Falcon what happened to the gun.

6) trial testimony: Mr. Falcon told the police that Mr. Melendez used a pillow or a cushion to muffle the sound of the gun.

sworn statement: There is no mention of this in the statement.

7) trial testimony: There is no mention of Mr. Del’s clothing.

sworn statement: Mr. Falcon stated that Mr. Melendez said that they took Mr. Del’s clothes the night of the murder.

(See EH exhibit 27; See also trial transcript, pp. 434-464, as marked for appeal purposes, attached).

The Court recognizes that at the time he took Mr. Falcon’s sworn statement on May 4, 1984, Mr. Pickard could not foresee that Mr. Falcon’s trial testimony would be different from his sworn statement. However, it was Mr. Pickard’s duty to determine whether his handwritten notes from this interview might contain any potentially exculpatory information. Mr. Pickard should have expected that a key State witness’ sworn statement taken before trial would likely provide defense counsel with impeachment opportunities at trial. Furthermore, Mr. Alcott testified that he would have liked to have had Mr. Pickard’s notes of Mr. Falcon’s statement under oath so that he could point to inconsistencies between the notes and the trial testimony. (See EH transcript, pp. 302-303, attached).

Thus, the Court finds that the prosecutor’s notes from David Luna Falcon’s interview with Mr. Pickard constitute Brady material. The notes clearly contain exculpatory evidence and were not provided to Mr. Alcott. Defense counsel was able to attack Mr. Falcon’s credibility regarding his criminal history, drug use, and involvement with law enforcement as a paid informant. Without the assistant state attorney’s notes, however, defense counsel was unable to further attack Mr. Falcon’s credibility on two important issues, the Reagan incident and the alleged confession the Defendant made to Mr. Falcon. Furthermore, Mr. Falcon’s aforementioned trial testimony led the trial court to conclude that the murder was committed in a wicked, evil, atrocious or cruel manner and that it was cold, calculated and premeditated.

John Berrien was also listed on the State’s Notice of Discovery and subpoenaed by Mr. Pickard for an investigative interview. (See Responses to Request for Discovery; See also EH transcript, pp. 36-37, attached). John Berrien was the other key State witness who testified against the Defendant at trial and also implicated his cousin, George Berrien. The record reflects that Mr. Pickard took John Berrien’s sworn statement on June 12, 1984. As with Mr. Falcon’s investigative interview, no one else was in the room, and Mr. Alcott was not noticed. Mr. Pickard did not disclose his four pages of handwritten notes to Mr. Alcott. (See EH transcript, pp. 37-38, attached).

John Berrien testified at trial that the Defendant asked him for a ride to Mr. Del’s to get his hair done and to pick up some money. He stated that he drove his cousin George and the Defendant to Auburndale and dropped them off on the side of the road close to Mr. Del’s salon. The Defendant had a towel around his neck. He testified that he then got gas, went to visit a friend, and went to Food World before retrieving George and the Defendant outside of Mr. Del’s, in response to the Defendant’s calling to him from outside Mr. Del’s. John Berrien stated that when the Defendant got into the car, he had the towel with him and was holding the two ends together. He said that George and Mr. Melendez were not excited or scared when they got back in the car, and they were not bloody. He testified that while he drove back to Lakeland, George and the Defendant were speaking to each other in Spanish and that he could not understand what they were saying. (See trial transcript, pp. 300-336, as marked for appellate purposes, attached).

John Berrien further testified that the next time he saw George and the Defendant, he picked them up to take them to the Amtrak train station in Lakeland. He stated that George had asked him for a ride because he was going to see his children in Wilmington, Delaware. At the train station, the Defendant supposedly gave George two rings, a watch, and a gun to sell in Wilmington. (See trial transcript, pp. 320-322, 326-327, as marked for appellate purposes, attached).

The assistant state attorney’s notes from John Berrien’s interview with Mr. Pickard contain numerous differences from his trial testimony:

1) trial testimony: John Berrien stated he didn’t know if the Defendant and George Berrien knew each other. He said the Defendant rode over to his house on a bicycle and that he, his wife, his son, and George were there when the Defendant arrived.

sworn statement: John Berrien said that George and the Defendant walked to his house to ask for a ride to Mr. Del’s.

2) trial testimony: John Berrien said he worked earlier that day, that he only had one appointment and would have gotten off work around noon.

sworn statement: John Berrien said he had a tooth infection so got off early and went to the dentist from 11 am to noon.

 

3) trial testimony: John Berrien stated that the Defendant and George did not have a gun, he didn’t see a gun, but he saw a bulge in the back of the Defendant’s pants that looked like it may be a gun.

sworn statement: John Berrien stated he saw the Defendant with a gun when Melendez got out of the car at Mr. Del’s.

4) trial testimony: When asked by Mr. Pickard, "Where did you go or where did you stop?" John Berrien replied that he pulled off to the side of the road close to Mr. Del’s.

sworn statement: John Berrien stated he stopped at Gilbert Luna’s place and a liquor store where George bought gin and grapefruit juice.

5) trial testimony: John Berrien testified that when the Defendant and George got out of the car, he did not see in what direction they went or where they went. He said he just pulled off in his car.

sworn statement: John Berrien said he watched the Defendant and George go into Mr. Del’s salon and that the door was not locked.

6) trial testimony: John Berrien stated he was not familiar with the type of car that Mr. Del had. He said there was a Cadillac parked on the side of Mr. Del’s building, but that he did not know whose car it was.

sworn statement: John Berrien told Mr. Pickard that when he pulled off near Mr. Del’s salon, John Berrien noticed that Mr. Del’s car was there. He said it was a new one on the side of the building.

7) trial testimony: John Berrien testified that after he dropped off the Defendant and George at Mr. Del’s, he went to gas station, then to his friend David’s house who wasn’t home, then to Food World and was gone about 2 hours.

sworn statement: John Berrien stated only that he went to a gas station nearby, then to Food World, and was gone 1-1 ½ hours.

8) trial testimony: John Berrien testified that when he picked them up at Mr. Del’s, Melendez got in the back seat, then George got in the car, but he didn’t see where George came from. He said the Defendant had a towel in his hands holding the two ends together, and that he had had the towel around his neck when he went into Mr. Del’s.

sworn statement: John Berrien saw George come out of Mr. Del’s and get into the front seat of the car. George had a towel with him when he got in the car and had it when he went into Mr. Del’s.

9) trial testimony: John Berrien said that after they got back in the car, George and the Defendant were speaking in Spanish and laughing. There was no trial testimony about any jewelry.

sworn statement: John Berrien said that after they got back in the car, the Defendant pulled a watch and two rings out of his pocket. He stated that the Defendant said something to George in Spanish, but there was no mention of any laughing.

10) trial testimony: John Berrien testified that he dropped the Defendant off at his house on Magnolia and he and George went back to his house.

sworn statement: John Berrien said that he dropped both the Defendant and George off at the Defendant’s house. When George got out of the car at the Defendant’s house he said he’d see John later and that he needed to talk with him about something.

11) trial testimony: John Berrien testified that he didn’t know what happened the next day and didn’t know exactly when he saw the Defendant or George again. He said he couldn’t remember when he took George and the Defendant to the train station, in relation to when he took them to Mr. Del’s.

sworn statement: John Berrien said the day after he took them to Mr. Del’s at 10:00 a.m., George came over to his house and asked for a ride to the train station and they picked up the Defendant on the way.

12) trial testimony: John Berrien testified that he never asked the Defendant about the murder.

sworn statement: John Berrien saw the Defendant one week later and asked him about the murder. He said the Defendant told him he had nothing to do with it.

13) trial testimony: At trial, there was no mention of Gilbert Luna except as a friend of the Defendant who would sometimes give him a ride in his car if the Defendant needed it.

 

sworn statement: When John Berrien and the Defendant were placed in the same cell after their arrests, the Defendant said his problems were the Luna boys. He stated the Defendant claimed he threatened Gilbert Luna because Gilbert owed the Defendant $1000- and that the Defendant thought the Luna boys were getting back at him because of the threat.

(See trial transcript, pp 299-336, as marked for appeal purposes; See also EH exhibit 13, attached).

Due to these numerous inconsistencies, the Court finds that Mr. Pickard’s notes of John Berrien’s sworn investigative interview contain exculpatory information. Mr. Alcott testified that it would have been important to have the assistant state attorney’s notes so that he could determine whether there were any pertinent inconsistencies which he could have presented to the jury. (See EH transcript, pp. 297-298, attached). Clearly, the above listed inconsistencies would have provided considerable possible impeachment of this key State witness. Mr. Pickard failed to disclose these notes despite his duty to do so.

The Court further finds that the assistant state attorney’s notes contain information favorable to the Defendant because the prosecutor used information obtained from the John Berrien interview to pursue other avenues of investigation, to which the Defense should have had access. The record reflects that after his investigative interview with John Berrien, Mr. Pickard sent a letter dated July 12, 1984 to Detective Gary Glisson of the Auburndale Police Department. In the letter, Mr. Pickard states that as a result of his interview with John Berrien, he needed Detective Glisson to interview Gilbert Luna and the Defendant’s girlfriend, Dorothy Jean. In the letter, Mr. Pickard also says that according to John Berrien, Gilbert Luna probably has some helpful information about Melendez and that Melendez may have confessed to his girlfriend, Dorothy Jean. (See EH exhibit 14, attached). Mr. Pickard stated that he did not provide this information to Mr. Alcott because he did not know if Gilbert Luna had material information. Gilbert Luna was not listed on the State’s notice of discovery as a person who has material information, nor was he called as a trial witness. (See EH transcript, pp. 38-42, attached).

Mr. Alcott, however, testified that it would have been important for him to have information concerning a link between John Berrien and Gilbert Luna, as he recalled that Gilbert Luna was the brother of David Luna Falcon, and his trial strategy was to discredit the State’s two key witnesses. Mr. Alcott stated that he did not have any information connecting John Berrien to Gilbert Luna because they traveled in different circles and he did not think the separate circles were related. (See EH transcript, pp. 298-299, attached). Thus, by failing to disclose his notes from his interview with John Berrien, Mr. Pickard precluded the Defendant from pursuing additional witnesses who, according to Mr. Alcott, might have provided valuable impeachment evidence relative to John Berrien and David Luna Falcon. As such, the Court finds that the prosecutor’s notes from the interview with John Berrien constitute Brady material.

Of the sixteen (16) people Mr. Pickard subpoenaed, thirteen (13) of them appeared and gave sworn statements. (See EH exhibits, 12-13, 15-19, 22-27, attached). The prosecutor took notes during each interview. Mr. Alcott never received a copy of Mr. Pickard’s notes. As it did with John Berrien’s interview, the interview of Sharon Jones led the prosecution to investigate other leads which were not available to the Defendant. (See EH exhibit 22; See also EH transcript, pp. 55-57 attached). Mr. Pickard’s notes of her sworn statement corroborate the Defendant’s theory of defense that two men other than the Defendant might be involved in the murder. His notes, in relevant part, read as follows:

said "Terry said he going to kill that man when he got out of prison. Same day of murder saw Carl Watts and Terry sitting on car across from Mr. Del’s. Sitting on car – Wendy’s lot.

Next day death in newspaper.

* * *

Terry Jones – L.W. – in state prison for stealing.

He a homo.

Terry had hair done there – was a student.

Terry in jail for stealing jewelry.

* * *

Carl Watts homo. also.

Carl went to school at Mr. Del also.

* * *

(See EH exhibit 22, attached).

Mr. Pickard's notes from his interview with Sharon James contain information the Defense could have used to pursue two other men as the possible perpetrators of Mr. Del's murder. The Court finds, therefore, that Mr. Pickard’s notes from Sharon Jones’ interview contain favorable information and are Brady material. The Court further finds that the prosecutor’s notes from the following investigative interviews should have been disclosed to the Defense: Franklin Brown, Stella Dunlap, Pete Dunlap, Dorothy Jean Hunter Rivera, and David Carrucina. (See EH exhibits 15, 17, 18, 19, and 28, attached). The sworn statements of these witnesses also contain information which could have led the Defense to additional witnesses or other information which might have corroborated the theory of defense. The sworn statement of Dorothy Jean was used by the prosecution to foster other leads and acquire additional information to which the Defense did not have access. (See EH exhibits 20, 21, attached). Furthermore, Dorothy Jean, Franklin Brown, and Stella Dunlap testified at trial. If the Defense had access to their sworn statements, trial counsel could have used these statements to further develop the testimony of the witnesses or to question the witnesses on matters contained in the sworn statements. Although Pete Dunlap and David Carrucina did not testify at trial, if the Defense had access to their sworn statements, trial counsel may have discovered additional information which would have prompted counsel to call them as witnesses. The Court finds that the withholding of these statements precluded the Defense from pursuing other avenues which might corroborate their theory of defense. The State, therefore, should have disclosed the notes from these statements.

Mr. Pickard: 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.

David Falcon. Again, you’re going to be asked to believe that he is lying. Why would he lie? Well, one of the things that you’re going to be told is he was involved in a shooting, shooting up a car back in – sometime in May of 1984 and nobody ever arrested him for that. He wasn’t charged. The police are giving him lenient treatment, not arresting him for some crime he committed in return for his testimony in the case. That makes his testimony suspect.

Two problems with that: Number one, the shooting that he was allegedly involved in happened at the end of May of 1984. David Falcon had already gone to the police in March and told them about the crime. His lack of being charged or whatever you want to call it in the shooting incident obviously could have had nothing to do with his testimony in this case, because he had already given his testimony in this case, two months before the shooting even happened, on March the 6^th when he went to talk to Mr. Roper.

Secondly, David Falcon has nothing to gain in this case. 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 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 for – 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.

* * *

Mr. Alcott: The credibility of the State’s case is take a look at the physical and scientific evidence that was brought to you to prove the commission of this crime. Take a look at the hair samples, the blood samples, the fingerprints found that match up, take a look at all the ballistics and all the evidence that connects Juan Melendez to the scene of the crime. There isn’t any of it. Nothing was offered to you in that regard. And going over the witnesses and their credibility – I will in a second.

* * *

...David Luna Falcon knows that. He knows if he buddies up with law enforcement, he’s their friend, and it’s us against them, that if I buddy up with law enforcement then they’re not going to arrest me, investigate me, prosecute me, and I can go around and do whatever I want and I’ll get away with it, and all I have to do is come in and testify and whatever. I can even admit to snorting cocaine and doing anything else.

Now, Mr. Pickard says this Mr. Falcon, he wasn’t even present in Polk County when this crime was committed. What evidence do you have before you that Mr. Pickard says, well, he wasn’t even present in Polk County when the crime was committed? You’ve got David Falcon’s testimony; I wasn’t here, I was someplace else. There isn’t any other proof of that.

* * *

...I submit look at John Berrien. John Berrien’s acknowledged burglary, grand theft, sales of drugs and possession of drugs; that he’s on probation now, and Mr. Pickard says to you, well, why did John agree to plead no contest. John’s an admitted liar. John admitted on the witness stand that he lied about he got his eyes shot out and he lied to his boss about it trying to collect Workmen’s Comp. In other words, when telling a lie will benefit John, John lies, he acknowledges that.

Why did John lie? Well, he was in jail 106 days, he testified, in Polk County jail up here in a cell for 106 days, almost four months. As he sat up there he had no bond, he could not get out of jail to see his wife and kids; sat up there with no bond, with a violation of probation, facing the death penalty on a first degree murder charge. What does he have to do to get out of jail and get on the street? He has to not even admit guilt, he doesn’t even have to plead guilty, because he said he wouldn’t. His attorney wanted him to plead guilty and he said, no, I’m not guilty because I’m not guilty, but if you’ll let me plead no contest – I’m not going to plead guilty, but I’ll plead no contest – if you’ll let me plead guilty, I’ll say some things for you for which I’ll get released from jail, and the Assistant State Attorney agrees to release him on a minimum bond, agrees to withhold his violation of probation and withhold any sentence. That’s the big key in the case, withhold any sentencing. Don’t bring him back to court and sentence him for that accessory charge until later. Let’s keep it hanging out here with the prospect that he could be recharged if he fails to testify against Juan Melendez. If he doesn’t come into court and say something about Juan Melendez, bang, he’s back in jail, no bond, first degree murder. That’s the deal he has with the State.

* * *

Falcon, David Luna – when it boils down to it, that’s your case. The Assistant State Attorney wants you to convict this man and send him to the electric chair based on the word of one person, David Luna Falcon, the murderer, the robber, the cocaine snorter from Puerto Rico who says when I was using drugs and under the influence of drugs and beer, he told me he did it. That’s all, nothing more. No other physical evidence.

(See trial transcript, pp. 689-730, attached).

Even if, Arguendo, the Defendant is not entitled to relief under a Brady analysis, the Defendant may nonetheless be entitled to relief under Jones, based on newly discovered evidence and a cumulative review of all evidence. In order to be newly discovered, the evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or his counsel could not have known of it through due diligence. The Court has already dealt with the issue of diligence as to Vernon James' taped statement, locating the new witnesses, as well as the assistant state attorney’s notes, letters, and memoranda, which the prosecution failed to disclose.

The remaining issue is whether the newly discovered evidence is of such a nature that it would probably produce an acquittal on retrial. In making this determination, the trial court is required to "consider all newly discovered evidence which would be admissible" at trial and then evaluate the "weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones, 709 So.2d 512, 521 (citing Jones, 591 So.2d at 911, 915-16). Because this case involves a second evidentiary hearing in which claims of newly discovered evidence were presented and evaluated by a trial judge, this Court must evaluate all the admissible newly discovered evidence at this hearing in conjunction with all newly discovered evidence from the prior evidentiary hearing, and then compare it with the evidence introduced at trial. See Jones, 709 So.2d 512, 522; See also Kyles, 541 U.S. at 441, 115 S.Ct. at 1569. The Court must then consider the cumulative effect of the newly discovered evidence presented at the evidentiary hearings, together with the Brady violations and any deficiencies of trial counsel, in a cumulative review, to determine if a reasonable probability exists of a different outcome. See Gunsby v. State, 670 So.2d 920, 924 (Fla. 1996). "The trial court cannot consider each piece of evidence in a vacuum, but must look at the total picture of all the evidence when making its decision." Lightbourne at 247.

The Defendant has shown that the taped interview between Roger Alcott and Vernon James at Tomoka Correctional Center on August 14, 1984 is newly discovered to his collateral counsel. However, the taped statement does not qualify as "newly discovered evidence" as discussed in Jones, since the Defendant’s trial counsel knew of the taped statement prior to the Defendant’s trial. Although this Court has found that Mr. Alcott’s failure to make use of the tape and its contents, standing alone, did not deprive the Defendant of a fair trial, it nonetheless should be evaluated in light of other evidence adduced since trial, to determine whether, in combination with that evidence, there would likely be a different result. See Gunsby at 924; See also Lightbourne at 247.

The taped statement of Vernon James’ interview with Mr. Alcott at Tomoka Correctional lends corroboration to the testimony of Dwight Wells at the 1996 evidentiary hearing and the May 2001 evidentiary hearing. In both hearings, Dwight Wells testified that prior to the Defendant’s trial, Vernon James confessed to him that he had killed Mr. Del. Mr. Wells recalled that Mr. James stated the following: that he was a homosexual and that he had gone to Mr. Del’s to party and do drugs, that Mr. Del had gotten overly aggressive with him in a homosexual manner, and that is what led to the murder. (See EH transcript, pp. 243-248; See also May 23, 1996 hearing transcript, pp. 110-125, attached). Mr. Wells said that he did not make notes or tape record the several discussions he had with Mr. James about the homicide. (See May 23, 1996 hearing transcript, pp. 119-121, attached). At the latest evidentiary hearing, Mr. Wells reviewed the transcript of the taped statement of the interview between Vernon James and Roger Alcott. Mr. Wells stated that there were some minor differences between the taped statement and Vernon James’ confession to him, but that in terms of Mr. Melendez’ involvement in the homicide, the two were consistent. (See EH transcript, pp. 246, attached).

Janet Conoway testified at the evidentiary hearing that one night when she was using drugs with some friends at their trailer, Vernon James knocked on the door. Ms. Conoway stated that when Mr. James opened the door, she saw that he had splashes of blood on the front of him and that he appeared nervous, scared, and jittery. She said Henry Davis told her to get a pair of pants and a shirt for Mr. James and that Henry Davis handed her Mr. James’ bloodied clothes and told her to take them outside and burn them. Ms. Conoway testified that she did as she was instructed by Henry Davis, and burned Vernon James’ clothes in a burn barrel outside the trailer. Inside the trailer, Ms. Conoway stated she overheard Vernon James telling Henry Davis about a struggle and that "he just had to do it that’s all there was to it, he had to do it." (See EH transcript, pp. 185-191, attached).

Ms. Conoway stated that she and another girl, Tammy, were then told that Mr. James was going with them to the Scottish Inn motel. Ms. Conoway said that Henry Davis left after he got the room for them. Then Ms. Conoway, Tammy, and Vernon James went to room 130, which was always the room she stayed in when at the motel. Ms. Conoway testified that in the motel room, Vernon James told her that she would do drugs with him or wind up like the other person – that he had killed one person and he could do it again. Ms. Conoway stated that Vernon James did not go into detail as to the specifics surrounding the murder. (See EH transcript, pp. 198-199, attached). Ms. Conoway said she later left the motel, got a newspaper and returned to Henry Davis’ place where she read about the murder of Mr. Del and said, "Oh, my God, look who we were with." Ms. Conoway said Henry Davis came into the room and hit her, and said, "If you open your mouth you could wind up just like that other guy." Ms. Conoway testified that she was afraid of Vernon James and afraid of Henry Davis. Ms. Conoway also stated that during the investigation of Mr. Del’s murder, she told a police officer what she knew about Vernon James, but he dismissed her as an "unhuman being." (See EH transcript, pp. 188-200, attached).

Kenneth Graham testified that he and Vernon James were friends and used to do drugs together. One day when they were getting high, Mr. James told Mr. Graham that he was a gigolo for Mr. Del and that he had broken into Mr. Del’s, then murdered and robbed him. Mr. Graham testified that Vernon James showed him a scarf, a watch, some jewelry, and money that he had taken from Mr. Del. Mr. Graham also stated that he knew Marty Lake from prison and that they shared information about Vernon James and what he had told them. Mr. Graham said that Vernon James did not disclose any details of the crime. (See EH transcript, pp. 365-378, attached).

Angelia Haughbrook testified that Vernon James was her boyfriend in 1983 and that they had discussed Mr. Del’s death approximately two weeks after the murder. Ms. Haughbrook stated that Vernon James showed her some rings and when she asked where he got it, Mr. James said "from a punk that he killed named Mr. Del." She further stated that Mr. James did not tell her any details about the crime. Ms. Haughbrook also testified that Vernon was a drug addict back in 1983 and that she used to see him with guns. (See EH transcript, pp. 352-364, attached).

The State claims that the testimony of these witnesses cannot be considered by the Court as newly discovered evidence because the testimony would not be admissible at trial. See Sims v. State, 754 So.2d 657, 660 (Fla. 2000)(No relief is warranted if the evidence would not be admissible at trial).

Florida Statute Section 90.804(2)(c) provides:

(2) Hearsay Exceptions. The following are not excluded under §90.802, provided that the declarant is unavailable as a witness:

(c) Statement against interest. A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

The State concedes that Vernon James became unavailable when he invoked his Fifth Amendment right and refused to testify. See Fla.Stat. §90.804(1)(b). Once unavailability has been established, in order for a statement to be admissible as a declaration against penal interest, there must be corroborating circumstances to show the trustworthiness of the statement. The State contends that this case is very similar to that of Jones v. State, 709 So.2d 512 (Fla. 1998), wherein the defendant presented a number of witnesses who claimed that a third party had confessed to the crime, but failed to demonstrate corroborating circumstances to show the trustworthiness of the witness’ statements.

In Jones, the Florida Supreme Court found that the witness’ statements concerning the alleged confessions lacked indicia of trustworthiness, because the confessions were not made prior to the original trial and were not made to a close acquaintance, counsel, or the police shortly after the crime. Rather, the confessions were made to a variety of inmates with whom the defendant served prison or jail time. The Jones court noted that "[w]hile it may be that the inmates were testifying falsely, it may also be that Schofield (the third party who confessed to the crime) bragged about a killing he did not commit" and that "a statement by one criminal to another criminal...is more apt to be jailhouse braggadocio than a statement against his criminal interest." Jones v. State, 678 So.2d at 309, 314 (Fla. 1996).

However, the Defendant’s case differs in several important aspects from Jones. The statements of Stanley Brookshire, Janet Conoway, Theodore Spencer, Kenneth Graham, and Angelia Haughbrook demonstrate that Vernon James did disclose his involvement to them shortly before or shortly after Mr. Del’s murder, and certainly before the Defendant’s trial. The State is correct that nothing in these witnesses’ testimony alone suggests that the information provided by Vernon James was reliable. Although none of the witnesses related specific details about the crime, they did testify that Vernon James showed them jewelry that allegedly belonged to Mr. Del. This corroborates James’ statements to them. Furthermore, Ms. Conoway’s testimony that she saw Vernon James in bloody clothes on the night of the murder and that she burned his clothes that night, provides important details which also corroborate other witnesses’ testimony. Moreover, the record reflects evidence in support of claims of Brady violations and ineffective assistance of counsel which substantiates that Vernon James also disclosed his involvement in Mr. Del’s murder to law enforcement officers, state attorney investigators, a criminal defense investigator, and two criminal defense attorneys prior to the Defendant’s trial. Unlike the evidence in Jones, this new evidence demonstrates corroborating circumstances which show the trustworthiness of the witnesses’ statements.

Additionally, the statements made by Vernon James to these witnesses are statements against Vernon James’ penal interest, because the statements subjected him to criminal liability for his involvement in the murder of Mr. Del. As Vernon James was unavailable to testify at the Defendant’s trial due to his refusal to testify, the Court finds that the testimony of Theodore Spencer, Kenneth Graham, Stanley Brookshire, Janet Conoway, and Angelia Haughbrook would have been admissible at trial under Florida Statute Section 90.804(2). Since this evidence would have been admissible at trial, this Court qualifies their testimony as newly discovered evidence and the Court will consider it in this cumulative analysis.

The Court now has a substantial amount of additional evidence before it that supports the Defendant’s theory of defense and trial strategy, but which was not presented to the jury. At trial, Mr. Alcott put forth a three-fold defense: 1) the Defendant was not present when Mr. Del was murdered; 2) the State’s case rested on the credibility of two main witnesses, John Berrien and David Luna Falcon, who were not credible; and 3) Vernon James committed the murder of Mr. Del. To support his case, the defense attorney called Terry Barber. Mr. Barber testified that when he went to Mr. Del’s on the evening of the homicide, he saw two men in Mr. Del’s back office who he believed to be Vernon James and Bobo (Harold Landrum). Mr. Barber also testified that after he had given the police this information, Detective Glisson of the Auburndale Police Department showed Mr. Barber a photopak which included a picture of the Defendant. Mr. Barber could not identify anyone in the photopak as someone he saw at Mr. Del’s that evening. (See trial transcript, pp. 569-580, as marked for appeal purposes, attached). Mr. Pickard discredited Terry Barber’s testimony by reiterating that Mr. Barber was not certain about whom he saw at Mr. Del’s that evening, that it could have been any number of people. (See trial transcript, pp. 580-581, as marked for appeal purposes, attached).

After Vernon James invoked his Fifth Amendment right and refused to testify, the Defense called Roger Mims to testify as to Mr. James’ confession. Mr. Mims testified that Vernon James told him the two men charged with the murder, John Berrien and Juan Melendez, had nothing to do with the murder. Mr. Mims testified that Vernon James said two other men shot Mr. Del in the head and chest and then Vernon James cut Mr. Del across the throat. (See trial transcript, pp. 634-635, as marked for appeal purposes, attached). In closing arguments, the prosecution said this about Mr. Mims’ testimony:

Mr. Mims, an inmate in the Polk County jail; Mr. Melendez, an inmate in the Polk County jail. Today is what, the 20^th of September of 1984. This crime was committed September 13^th, 1983, over a year ago. Mr. Melendez has been in the Polk County jail since May of this year. Mr. Mims has been in the Polk County jail, according to him, some three or four weeks in the same cell with a man named Vernon James and, lo and behold, Friday night, before this trial is to start Monday, a year after the crime is committed, Vernon James supposedly confesses that he committed the crime. Now, that’s extremely lucky for Mr. Melendez that the Friday before his trial starts somebody else confesses to the crime. That’s real nice.

(See trial transcript, pp. 735, as marked for appeal purposes, attached).

However, evidence has been presented before the Court which tends to substantiate that Vernon James was involved in the murder of Mr. Del and that Mr. Melendez was not. The jury was precluded from hearing that evidence. Included in this evidence is the testimony of Janet Conoway who saw Vernon James on the night of the murder and burned his bloody clothes. Stanley Brookshire, Kenneth Graham, Theodore Spencer, and Angelia Haughbrook also testified that within two weeks of the homicide Vernon James told them that he had killed Mr. Del. Mr. Brookshire, Mr. Graham, and Ms. Haughbrook also said that Vernon James showed them jewelry that was supposedly Mr. Del’s. The jury did not hear the testimony of these five witnesses.

Other evidence includes the taped interview of Vernon James on August 14, 1984, by Mr. Alcott and Cody Smith. In that statement, Vernon James said that Juan Melendez was not present when Mr. Del was killed. Mr. James also said that he was outside the door when Mr. Del was shot, and that he had given this same information to Detective Richardson of the Auburndale Police Department, and attorney Dwight Wells. (See EH exhibit 34, attached). Neither the jury nor the court presiding over the Defendant’s 1996 evidentiary hearing had this information, although both Mr. Alcott and Mr. Pickard knew the taped statement existed.

The prosecutor’s notes from Mr. Meeks’ interview on September 7, 1984, with Vernon James reflect that Mr. James told Mr. Meeks that he went to Mr. Del’s with two other men to settle an argument with Mr. Del. The notes further reflect that Vernon James stated he was inside Mr. Del’s salon at first, but left prior to the murder. He said that he waited outside while the other two men killed Mr. Del. (See EH exhibits 36 and 37, attached). As previously discussed, Mr. Alcott testified that he had no knowledge of this information and that when he saw Mr. Meeks listed as a possible rebuttal witness, Mr. Alcott called Mr. Pickard and asked what Mr. Meeks would say if he testified. In reading his handwritten notes, Mr. Alcott testified as to what the State had told him regarding Mr. Meeks’ possible testimony. Mr. Meeks would say that Vernon James told him in November of 1983 when he was first interviewed, that he could help solve the crime but that he didn’t know who did it. Mr. Alcott testified that he had no knowledge of the second interview between Arthur Meeks and Vernon James. Had he known of the subsequent interview and its substance, Mr. Alcott would have called Arthur Meeks to testify regarding Vernon James’ statements instead of Roger Mims. (See EH exhibit 44; See also EH transcript, pp. 285-289, attached). The jury didn’t know about the interview between Arthur Meeks and Vernon James, or what Mr. James had disclosed.

Additional evidence has also been presented to this Court which further bolsters the Defendant’s case at trial and throughout the postconviction process. David Luna Falcon was the primary witness against the Defendant, as it was to him alone that the Defendant allegedly confessed. At trial, the State’s position was that Falcon had nothing to gain by testifying against the Defendant, that he was paid an insignificant amount of money, that he was not charged with any crime, and that he did not receive a plea bargain in exchange for his testimony. Thus, the State maintained, he had no reason to give false testimony. (See trial transcript, pp. 689-706, as marked for appeal purposes, attached).

Although Mr. Alcott attempted to discredit Mr. Falcon at trial, Mr. Alcott did not have information available to him which he could have used to significantly undermine Mr. Falcon’s credibility in the eyes of the jurors. This Court has found that handwritten notes from Mr. Reagan’s account of the shooting incident implicating Mr. Falcon, and a letter from Mr. Pickard to Detective Gary Glisson regarding the Reagan incident, constitute Brady material. These handwritten notes indicate that Detective Glisson apparently pressured Mrs. Reagan into signing a waiver of prosecution. The Detective suggested that he could bring more charges against Mr. Reagan, and that if Detective Glisson arrested Falcon for the shooting incident, Falcon could just bond out and come back to get her. The notes further state that when Mrs. Reagan signed the waiver of prosecution, Detective Glisson made a promise to Mrs. Reagan that Falcon would not be back to bother her. (See EH exhibit 30, attached).

When he discovered Mr. Falcon’s involvement in the Reagan incident Mr. Pickard sent a letter to Detective Glisson. Mr. Pickard wrote that "Mr. Falcon got himself into some trouble with a firearm while supposedly working undercover for you making drug buys." Mr. Pickard went on to say that until Mr. Melendez’ case was concluded in court, Mr. Falcon should not be used in undercover operations by the Auburndale Police Department. (See EH exhibit 31, attached). The information in the handwritten notes and in the assistant state attorney’s letter weaken the State’s argument to the jury that Mr. Falcon had nothing to gain by testifying against Mr. Melendez at trial. Mr. Pickard did not disclose these two items to Mr. Alcott. Mr. Alcott testified that he would have presented evidence that the police and the assistant state attorney failed to investigate the Reagan home invasion because it led to Mr. Falcon. Furthermore, Mr. Alcott could have used the handwritten notes and the assistant state attorney’s letter to impeach Mr. Falcon about the Reagan home invasion, since Mr. Falcon maintained he had not been involved. (See EH transcript, pp. 305-306, attached). The jury, however, was precluded from hearing any testimony regarding Mr. Falcon’s possible motives to falsify his testimony. His reliability as a witness might have been impaired had the jury heard this evidence.

There was other important impeachment evidence which the State failed to disclose to the Defense at trial, particularly the assistant state attorney’s notes regarding the sworn witness investigative interviews of David Luna Falcon and John Berrien discussed in great detail above. Mr. Pickard’s notes of Mr. Falcon’s sworn interview differ from Mr. Falcon’s trial testimony. In his sworn statement, Mr. Falcon said the alleged perpetrators were Juan Melendez, George Berrien, and John Berrien. At trial, however, Mr. Falcon said the alleged perpetrators were Juan Melendez and "the other black guy." He testified that he did not know the identity of this "other black guy." (See EH exhibit 27; See also trial testimony, pp. 441-444, as marked for appeal purposes, attached). More important is the discrepancy between the notes and Mr. Falcon’s trial testimony regarding the Defendant’s alleged refusal to take Mr. Del to the hospital after Mr. Del begged for his life. Mr. Falcon’s testimony at trial was that Mr. Del lay bleeding on the floor after his throat had been slashed and that he begged the Defendant to take him to the hospital. The victim supposedly even offered one million dollars if his attackers would take him to the hospital. Mr. Falcon testified that the Defendant refused for fear that Mr. Del would go to the police. The Defendant then allegedly shot Mr. Del in the head while he lay bleeding on the floor. (See EH exhibit 27; See also trial testimony, pp. 441-444, as marked for appeal purposes, attached).

The trial court’s Finding in Support of Death Penalty is a one and a half page document containing four (4) aggravating circumstances and no mitigating factors. The first aggravating circumstance was that the Defendant was previously convicted of a felony involving the use or threat of violence (Robbery). The second aggravating circumstance was that the crime was committed while he was engaged in or an accomplice to the commission of a robbery. The third aggravator listed was that three pages of the trial testimony of David Luna Falcon demonstrated that the crime was especially wicked, evil, atrocious, or cruel. The fourth aggravator was that three pages of the trial testimony of David Luna Falcon demonstrated that the crime was committed in a cold, calculated, and premeditated manner without moral or legal justification. (See Finding in Support of Death Penalty, attached). The same three pages of trial testimony used as the basis for the last two aggravators is the same testimony which conflicts with Mr. Falcon’s sworn statements to Mr. Pickard. Although Mr. Falcon’s testimony was vital to the State’s case in obtaining a death sentence, the jury was not made aware of these inconsistencies and others in Mr. Falcon’s testimony.

The trial record shows that Mr. Alcott attempted to discredit key State’s witness John Berrien, by cross-examining him on his charge and the sentence he received in exchange for his testimony at the Defendant’s trial:

Q: Okay. You are facing - - on the first degree murder indictment you were facing the death penalty at one time, weren’t you, first degree murder?

A: Yes, that’s right.

Q: The same as Juan.

A: Right.

Q: You’re not facing it anymore, are you?

A: Accessory after the fact.

Q: You didn’t plead guilty to that, you just said no contest.

A: Right.

Q: What does a no contest mean to you?

A: To me?

Q: Yeah.

A: Well, I didn’t feel like I had nothing to do with it, so I said no contest. My lawyer wanted me to plead guilty, but I wouldn’t accept a guilty plea. I said no contest.

Q: You wouldn’t accept a plea of guilty because you didn’t feel you did anything wrong?

A: That’s right.

Q: Why did you plead no contest?

A: Because that’s what my lawyer had me to do.

Q: And you got out of a first degree murder charge that way?

A: Yes, I reckon.

Q: And you got out of jail then; didn’t you get released from jail then?

A: Yes, I got a bond and was released.

Q: Okay, had you had any bond prior to that time?

A: Pardon me?

Q: Were you on bond or had a bond been set for your prior to that plea?

A: No, I couldn’t get a bond.

Q: How long had you been in jail?

A: 106 days.

Q: Then you entered this plea of no contest and they released you from jail?

A: Right.

Q: Okay, did Mr. Pickard agree to have you released from jail?

A: Yeah.

(See trial transcript, pp. 327-328, as marked for appeal purposes, attached).

Although Mr. Alcott attempted to attack John Berrien’s motive to testify against the Defendant, the record reflects that there were pages of inconsistencies between the trial testimony of John Berrien and his sworn statement to the assistant state attorney, none of which Mr. Alcott was able to use. Thus, the jury was not given an opportunity to fully assess the credibility of this key State witness.

Vernon James made statements to numerous friends, as well as to Cody Smith, Roger Alcott, Arthur Meeks, and Dwight Wells that he either was present when Mr. Del was killed or that he actually killed Mr. Del. In any case, the testimony of the witnesses, the assistant state attorney's notes and letters, and the taped statement of Vernon James’ interview with Roger Alcott tend to corroborate that Vernon James was present and that Juan Melendez was not. If Mr. Alcott had known that Vernon James had implicated himself to Mr. Meeks, Mr. Alcott would have called Mr. Meeks to testify as to what Vernon James had stated. (See EH transcript, pp. 331-333, attacked). Mr. Alcott knew that Vernon James had spoken to attorney Dwight Wells, but Mr. Alcott did not follow up with Mr. Wells. The testimony of an assistant state attorney investigator and an attorney would likely be more credible to a jury than that of an inmate, who said that Vernon James confessed to him three days before trial. The jury was precluded from hearing that Vernon James had confirmed his involvement to Mr. Wells and Mr. Meeks.

It is therefore ORDERED AND ADJUDGED that the Defendant’s judgment of guilty rendered on September 20, 1984 and his sentence of death rendered on September 21, 1984 shall be vacated and set aside.

It is further ORDERED AND ADJUDGED that the Defendant shall be granted a new trial.

DONE AND ORDERED in Chambers, at Tampa, Hillsborough County, Florida this day of December, 2001.

BARBARA FLEISCHER, Circuit Judge

Evidentiary Hearing transcript, 5/29/01

Evidentiary Hearing exhibits #1-44

Deposition of Leslie Delk, 5/14/01

Responses to Request for Discovery (State and Defendant)

Finding in Support of Death Penalty with Exhibit B attached

Trial transcript, 9/17/84-9/20/84, Vol. 1-5

Motion to Vacate Judgment and Sentence with Special Request for Leave to Amend, 1/16/89

Order Denying Motion to Vacate, 7/12/89

Motion to Vacate Judgment and Sentence with Special Request for Leave to Amend, 9/22/94

Evidentiary Hearing transcript, 5/23/96 & 5/24/96, Vol. 1-2

Order Denying Motion to Vacate Judgment and Sentence, 7/17/96

Copies furnished to:

Martin J. McClain, Special Assistant CCC-NR

Hardy Pickard, Assistant State Attorney

Candance Sabella, Assistant Attorney General

Polk County Clerk of Court