Cannady v. State, 620 So. 2d 165 (Fla. 1993) . . . . . . 12, 14

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . 6, 14, 16

Gunsby v. State, 670 So. 2d 920 (Fla. 1996) . . . . . . . . . . 9

Jean v. Rice, 945 F.2d 82 (4th Cir. 1991) . . . . . . . . . . 16

Jones v. State, 591 So. 2d 911 (Fla. 1991) . . . . . . . . . . 8

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . 6

United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . 16

1

The State’s position regarding this claims relies upon three

arguments: (1) that the evidence presented by Mr. Melendez in

support of this claim is cumulative to the evidence at trial, (2)

that the evidence presented by Mr. Melendez in support of this

claim would not probably produce an acquittal and (3) that the

evidence presented by Mr. Melendez in support of this claim was

either previously known to trial counsel or could have been

discovered by trial counsel. Each of these arguments will be

addressed in turn.

The State argues that Mr. Melendez’s new evidence is

cumulative to that presented at trial because at trial the

defense argued and presented some evidence that the murder was

committed by Vernon James (Answer Brief at 33-35, 38)

(hereinafter "AB"). According to the State, since defense

counsel presented Roger Mims to testify that Mr. James confessed

to committing the murder, other evidence implicating Mr. James is

cumulative. The State’s argument parrots one of the reasons the

circuit court provided for denying relief (See PC-R2. 427

(denying relief in part because the trial jury rejected the

defense theory that Vernon James committed the murder)). Mr.

Melendez’s Initial Brief addresses the errors in this part of the

2

circuit court’s reasoning (Initial Brief at 51-53), but the

State’s brief does not address Mr. Melendez’s arguments in this

regard. The State fails to address the closeness of the State

and defense cases at Mr. Melendez’s trial, and the resulting fact

that adding more weight to the defense side of the case could

very well have changed the jury’s view of the case. The State

fails to address the concept that new evidence supporting an old

fact or theory adds weight to an old fact or theory and makes it

more likely that the fact or theory is true. The State’s

position is illogical.

The State’s position is also factually erroneous. While

trial counsel presented Roger Mims to testify that Mr. James

confessed to the murder, the witnesses presented in postconviction

added additional details inculpating Mr. James and

added credibility to Mr. Mims’ testimony. Deborah Ciotti’s

testimony explained Mr. James’ plan to rob the victim, described

him going to the victim’s shop on the day of the murder and

described her encounter with Mr. James the day after the murder

when he responded to her question regarding whether he got what

he went for at the victim’s by pulling money and cocaine out of

his pocket (PC-R2. 91-93). Ms. Ciotti also categorically stated

that Mr. Melendez was not one of the men who went into the

victim’s shop with Mr. James (PC-R2. 106-07). This testimony

certainly does not repeat Mr. Mims’ testimony, but provides

additional details inculpating Mr. James and exculpating Mr.

Melendez. Sandra James testified that Mr. James admitted setting

3

up the robbery of the victim and being present during the murder

(PC-R2. 127). This testimony, too, does not repeat Mr. Mims’

testimony, but provides additional details inculpating Mr. James.

Janice Dawson testified that Mr. James feared that he would get

life or the electric chair for his part in the murder and gave

her some jewelry which he said belonged to the victim (PC-R2.

114, 115-16). This testimony also does not repeat Mr. Mims’

testimony, but provides additional details inculpating Mr. James.

Finally, the State’s cumulativeness argument fails to take

any account of the testimony of Dwight Wells and trial counsel’s

comments about that testimony. Mr. Wells testified that Mr.

James confessed to participating in the murder (PC-R2. 194-95).

Trial counsel testified that evidence from a person such as Mr.

Wells would have been significant "because certainly he carried

more credibility than the inmate who was in the cell with Mr.

James" (PC-R2. 297). Thus, Mr. Wells’ testimony would not have

been cumulative to that of Mr. Mims, but would have carried

greater credibility and would have corroborated Mr. Mims’

testimony. The State’s cumulativeness argument ignores the

facts.

The State’s argument that Mr. Melendez’s new evidence would

not probably produce an acquittal rests upon its contentions that

the testimony presented below did not exculpate Mr. Melendez (AB

4

at 35, 36, 37-38) and that the lower court found some of the

witnesses not to be credible (AB at 35, 36, 37).

As to the State’s argument that the testimony below did not

exculpate Mr. Melendez, the State has ignored the trial record.

The State argues:

While [the] testimony [of Deborah Ciotti, Sandra James

and Janice Dawson] incriminates Vernon James in some

illegal activity, it does not even address appellant’s

culpability. . . . Even if Vernon James was somehow

involved, that does not negate Melendez’s participation

in the murder; they are not mutually exclusive. The

state has never maintained that Melendez was the sole

participant in this crime.

(AB at 37). The State’s argument is a blatant evasion of what

the trial record reflects.

The State’s position at trial was that Mr. Melendez, George

Berrien and John Berrien committed the crime, and the State’s

evidence at trial was intended to prove this. In fact, the

State’s closing argument urged the jury to disbelieve the

evidence about Vernon James. The State argued that the jury

should not believe Roger Mims’s testimony about Vernon James’

confession (R. 735). The State argued that trial counsel’s

contention that Vernon James committed the crime was "a smoke

screen" (R. 736). The State then concluded by arguing that the

testimony of John Berrien and David Falcon established that Mr.

Melendez committed the murder (R. 738).

Evidence contrary to the State’s case at trial and its

closing argument exculpates Mr. Melendez. For the State to now

argue that it "has never maintained the Melendez was the sole

5

participant in this crime" is disingenuous at best. The State

did not maintain that Mr. Melendez was the "sole" participant,

but certainly did maintain that Mr. Melendez and the two Berriens

committed the crime and that Vernon James did not. Evidence

contradicting this position is exculpatory.

In support of its argument that the new evidence does not

exculpate Mr. Melendez, the State also attempts to argue that the

two men Deborah Ciotti saw Vernon James pick up before going to

the victim’s shop might have been Mr. Melendez and George Berrien

(AB at 37-38). However, the State ignores Ms. Ciotti’s

categorical testimony that Mr. Melendez was not one of the two

men (PC-R2. 106-07). If the State wishes to accept part of Ms.

Ciotti’s testimony--that she saw Vernon James pick up two men and

go to the victim’s shop--the State should accept the other part--

that neither of the two men was Mr. Melendez.

In arguing that the new evidence does not exculpate Mr.

Melendez, the State has failed to consider the record as a whole

and the cumulative effect of all the evidence the jury did not

hear. Rather, the State wishes to take each bit of evidence

piecemeal, an analysis which is contrary to the law. Mr.

Melendez’s initial brief sets out the law requiring consideration

of the record as a whole for the three kinds of issues involved

in this appeal--newly discovered evidence, Brady and ineffective

assistance of counsel--but the State’s brief does not even

acknowledge, much less discuss, this authority (See Initial Brief

at 45-47).

6

This authority requires that analysis of such claims

includes an examination of the totality of the circumstances.

Here, the totality of the circumstances includes the fact that

the State’s case at trial against Mr. Melendez was very weak. In

such circumstances, the United States Supreme Court has

recognized, "a verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors than one

with overwhelming record support." Strickland v. Washington, 466

U.S. 668, 695-96 (1984). The State’s argument that the new

evidence does not exculpate Mr. Melendez has failed to take into

account the totality of the circumstances, including the weakness

of the State’s case against Mr. Melendez.

The State argues that some of the witnesses presented below

were not credible and therefore that their testimony would not

probably produce an acquittal (AB at 35, 36, 37). The State

argues that the witnesses who were not credible were Deborah

Ciotti, Janice Dawson and Sandra James (Id.). The State does not

argue that Dwight Wells was not credible (See AB at 38).

The circuit court’s order was less than clear regarding

which witnesses the court found not to be credible. As the

State’s brief notes, the court stated that "four of the five"

witnesses Mr. Melendez presented were not credible (PC-R2. 426).

The five witnesses the court was referring to were Deborah

Ciotti, Janice Dawson, Sandra James, John Berrien and Dwight

Wells (Id.). The order then discussed each witness individually,

but did not identify which four the court concluded were not

7

credible, except John Berrien, whom the court stated "was

completely unbelievable" (Id.). The vagueness of the court’s

order renders it an unreliable basis for denying relief.

Further, Mr. Melendez has argued that the court’s

credibility determinations are not supported by any legitimate

reasons nor by the evidence (See Initial Brief at 55-62). As

stated, any basis for these determinations is difficult to

discern because of the order’s lack of clarity. The State does

not attempt to provide a legitimate basis in the record for the

court’s credibility determinations.

Moreover, in saying that "four of the five" witnesses were

not credible, the court found at least one of Mr. Melendez’s

witnesses to be credible. The State assumes that this witness

was Dwight Wells. The State then does not address the effect on

Mr. Melendez’s jury of the testimony from a witness whom the

court found credible and who trial counsel said would be more

credible to the jury than a jail inmate that Mr. James had

confessed to committing the murder.

Finally, the State argues that the new evidence does not

"relieve[ Mr. Melendez] of responsibility for the murder" (AB at

39). This is not the test under JG Cannady. Further, the State

does not address the fact that Mr. Berrien was previously

unavailable to post-conviction counsel. Mr. Melendez’s first

Rule 3.850 motion alleged trial counsel was ineffective in

failing to impeach Mr. Berrien with his deposition testimony, but

8

Mr. Berrien could not be found at that time to provide the

additional information to which he testified below.

The State contends that there is no reasonable probability

of a different outcome based upon John Berrien’s testimony (AB at

46-48). First, the State contends that Mr. Berrien’s testimony

was "thoroughly challenged at trial" (AB at 46). This is

incorrect. As Mr. Melendez’s Initial Brief explains, the jury

was never informed about Mr. Berrien’s frequently contradictory

pretrial statements to police or about his pretrial deposition.

Next, the State argues that none of the matters about which

Mr. Berrien said he testified falsely at trial is material (AB at

46-47). However, on direct examination, Mr. Berrien testified

that the police gave him the following information that they

wanted to use against Mr. Melendez: that Mr. Berrien and Mr.

Melendez had planned the robbery and that Mr. Berrien expected to

get a share of whatever was stolen (PC-R2. 137); the time and

date on which he took Mr. Melendez to Mr. Baker's beauty school

(PC-R2. 138); and that he saw Mr. Melendez give George Berrien

two rings, a watch, and a gun (PC-R2. 139). On crossexamination,

the State Attorney reviewed Mr. Berrien's trial

testimony to clarify what information was given to Mr. Berrien by

the police (PC-R2. 160-73) . As on direct, Mr. Berrien repeated

what parts of his trial testimony were false: that he had seen

Mr. Melendez with .38 caliber pistols in the past (PC-R2. 163);

that he saw Mr. Melendez carrying a towel when he picked him up

at the beauty school (PC-R2. 167); and that Mr. Melendez gave

9

George Berrien jewelry and .38 caliber pistol at the train

station to be sold in Delaware (PC-R2. 171-73). Mr. Berrien

repeatedly testified that the police had told him what he should

say and that they were the source of the information he offered

against Mr. Melendez his trial (PC-R2. 137, 140, 151, 171-72,

174, 183-84).

In light of the weakness of the State’s case at trial and

the emphasis both sides put on assessing the credibility of the

State’s witnesses--matters which the State’s brief does not

acknowledge, much less discuss--this evidence is material. Mr.

Melendez's conviction and death sentence rest on the credibility

of Mr. Berrien. Thus, any information revealing that his trial

testimony was false and the result of police coercion would be

material to Mr. Melendez's defense. The jury that convicted Mr.

Melendez never heard the evidence discussed above. Evidence

relevant to evaluating a witness's credibility is material.

Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bagley,

473 U.S. 667 (1985); Jean v. Rice, 945 F.2d 82 (4th Cir. 1991).

Because Mr. Berrien was a key State witness who could have been

impeached with this evidence, confidence in the outcome of Mr.

Melendez's trial is undermined.

The only evidence offered against Mr. Melendez was the

testimony of David Luna Falcon and Mr. Berrien. There was

absolutely no physical evidence connecting Mr. Melendez to the

crime. The State knew that Mr. Falcon was not a credible witness

and effectively used Mr. Berrien to corroborate his testimony.

10

Therefore, the impeachment of Mr. Berrien would not only have

affected the persuasiveness of his own testimony, but would have

undermined the State's entire case. In addition, in the absence

of physical evidence, credibility of the witnesses was the

central issue at Mr. Melendez's trial.

Attorneys for both sides admitted that the credibility of

their witnesses was a fundamental issue for the jury that would

determine their verdict. Defense counsel’s opening statement

encouraged the jury to evaluate the credibility of Mr. Falcon and

Mr. Berrien (R. 241, 243). The State Attorney's closing also

invited the jury to evaluate the witnesses' credibility (R. 690-

91). The State Attorney bolstered his key witness's credibility

by telling the jury that Mr. Berrien would not tell a lie that

implicated himself in the crime (R. 704). If defense counsel had

known how the State secured Mr. Berrien's self-incriminating

statements, he could have effectively countered the State's

bolstering of its witness. The fact that Mr. Berrien’s trial

testimony was coerced and that he testified falsely as to certain

matters was material in the context of Mr. Melendez’s trial.

As to Argument III, the State argues that an ineffective

assistance of counsel claim is barred because ineffective

assistance of counsel was raised in Mr. Melendez’s first Rule

3.850 motion (AB at 49). The State does not discuss the facts

presented below which showed that the particular grounds for the

ineffective assistance of counsel claim raised in Mr. Melendez’s

11

second Rule 3.850 motion were not available at the time the first

motion was filed (See Initial Brief at 38-40). Nor does the

State discuss the law holding that when evidence supporting an

ineffective assistance of counsel claim was unavailable for an

initial Rule 3.850 motion but later becomes available, it is

proper to present an ineffective assistance of counsel claim in a

second Rule 3.850 motion (See Initial Brief at 73).

The State also baldly asserts that Mr. Melendez’s

ineffective assistance of counsel claim is without merit (AB at

49). The State offers no discussion of the particular facts of

Mr. Melendez’s claim to support this assertion. When the

particular facts of Mr. Melendez’s claim and the trial record are

properly considered, it is clear that Mr. Melendez was deprived

of the effective assistance of counsel (See Initial Brief at 73-

79).

12

The State’s brief does not address Mr. Melendez’s Argument

IV. Mr. Melendez relies on his Initial Brief.

Based upon the trial and postconviction records, his Initial

Brief and the discussion herein, Mr. Melendez respectfully urges

the Court to reverse the lower court’s order and grant Mr.

Melendez a new trial and sentencing.

I HEREBY CERTIFY that a true copy of the foregoing reply

brief has been furnished by United States Mail, first class

postage prepaid, to all counsel of record on November 3, 1997.

GREGORY C. SMITH

Florida Bar No. 279080

Capital Collateral Counsel

Northern Region

GAIL E. ANDERSON

Florida Bar No. 0841544

Special Assistant CCRC

P.O. Box 9

Greensboro, FL 32324

(904) 442-6480

Counsel for Mr. Melendez

Copies furnished to:

Candance Sabella

Assistant Attorney General

Department of Legal Affairs

2002 North Lois Avenue, Suite 700

Tampa, FL 33607-2366